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https://www.courtlistener.com/api/rest/v3/opinions/3384890/
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 69
STATEMENT.
The complainants, Elizabeth Johnston, widow of John Johnston, George W. Johnston, son of the deceased, and John Logan, as Administrator of the estate of John Johnston, filed their bill in the Court below against Robert E. Thomas and wife, E. K. Anderson and wife, and Louise Degavre and husband, and P. E. Braddock, praying the cancellation of a certain deed from John Johnston and wife to Robert E. Thomas, conveying certain property in Auburndale, Florida, and a deed from Robert E. Thomas and wife to E. K. Anderson, conveying the same property, and notes and mortgage from Anderson and wife to Thomas, and an assignment of said notes and mortgage to Louise Degavre; also for an accounting of the rents and profits on the property conveyed, on which there was a bearing orange grove; and, in the event complainants should not be found entitled to cancellation of the said deeds, notes and mortgages, that the Court render a decree of accounting against the defendants Robert E. Thomas and P. E. Braddock for the sale price of said grove, the sum of $12,000.00, and for general relief. After the filing of the bill, complainants, being the appellants here, abandoned the demand for cancellation of the deeds and mortgage and procured a dismissal of the bill as to the defendants Anderson and wife and Louise Degavre and husband, and thereafter sought to obtain a decree of accounting only as against the defendants Robert E. Thomas and P. E. Braddock, for the value of the assets of the estate of John Johnston, deceased, that came into their hands immediately before and after the death of the said John Johnston.
The bill alleged that the said John Johnston died at Coronet, Florida, on March 24, 1920, leaving surviving as his only heirs-in-law said Elizabeth Johnston, his widow, *Page 71
and George W. Johnston, his son, and that John Logan was appointed ex officio administrator of the estate of the deceased by the County Judge of Polk County on June 27, 1921, and that since such appointment the widow had filed in the office of the County Judge her election to take a child's part in said estate. That shortly prior to his death the deceased was seized and possessed of a certain orange grove in Auburndale of the value of $12,000.00, and certain personal property consisting of cash on deposit in the Latin-American Bank of Tampa and the State Bank of Auburndale, approximately $1,500.00, two shares of the capital stock of said State Bank of Auburndale, of the value of $300.00, and certain Liberty bonds of the value of $1,000.00, and other personal property and effects of unknown description and value, but through the fraud, chicanery, imposition, undue influence and other inequitable conduct of the said Robert E. Thomas and P. E. Braddock, practiced toward and upon the said Johnston during his last illness, the said Johnston was shortly before his death wrongfully deprived of the ownership and possession of all of his said property.
That the defendant Robert E. Thomas obtained from the deceased what purported to be a warranty deed from said John Johnston and Elizabeth Johnston, conveying said grove property, dated August 13, 1919, and purporting to have been acknowledged by Elizabeth Johnston on September 11, 1919, and by John Johnston on February 13, 1920, but alleging on information and belief that said deed was not signed by John Johnston until March 23, 1920, the day before his death, and was filed for record the same day; that this deed was without consideration and that the defendant Robert E. Thomas, joined by his wife, attempted by warranty deed to convey said property to E. K. Anderson for a consideration of $12,000.00, of which $7,000.00 had *Page 72
been paid in cash and the balance secured by five notes of $1,000.00 each, payable annually, and secured by first mortgage, which notes and mortgage the defendant Robert E. Thomas has subsequently assigned to Louise Degavre.
The bill further alleges that for several years preceding the death of said John Johnston, he and the defendant Thomas had been thrown together a great deal, were both members of the same secret order and that said Thomas had insinuated himself into the fullest confidence of the deceased and obtained a complete mastery over his mind and affections. That said Thomas was a shrewd real estate dealer, and that the deceased had given him the exclusive right as a real estate agent to sell said grove, and that Thomas had negotiated a sale of the grove for Johnston and the purchase by Johnston of a tract of land at Terra Ceia, Florida. That on or about January 1st, 1920, Johnston, became ill and left Auburndale and went to the home of his friend John Henderson at Coronet, Florida, and remained there until he died on March 24, 1920. That the defendant Thomas made frequent trips from Auburndale to Coronet, a distance of twenty-five miles, to visit Johnston during his illness, Braddock accompanying him on two occasions, having frequent secret conferences with the deceased, and secured from him during his last days the aforementioned deed to the grove property, and the possession of all of his personal property, including checks and orders signed in blank on all of Johnston's funds in banks, as well as for the Liberty bonds, and the signature of the deceased to an assignment of his stock certificate in the State Bank of Auburndale, which certificate Braddock caused to be cancelled and reissued to himself without consideration.
That after the death of the said John Johnston, the defendant Thomas pretended that the deceased had left all of his property in Thomas' care and that after reimbursing *Page 73
and repaying himself a large loan he fraudulently pretended had been made by him to said Johnston and settling all debts against the estate, he was to pay and distribute the balance of the estate, which he claimed was about $1,700.00, to the relatives and certain friends of said Johnston. That said Thomas pretended to administer on the estate of said Johnston, but this he did as an administrator de son tort. That Thomas had refused to make any accounting except a false and fraudulent one, and that Thomas and Braddock had conspired to defraud the estate and the complainants by corruptly appropriating to their use the whole of the estate except such small portion thereof as was used to pay the cost and expenses of the last illness and burial of the deceased.
The defendant Robert E. Thomas, by separate answer, alleged that he had known the deceased for a great many years and had enjoyed a close and intimate acquaintance and friendship with him up to the time of his death. That for many years he had lived alone and was never visited by either of the complainants, his wife, Elizabeth Johnston, living in Scotland, or his son, George, residing in California. That during the later years of his life the deceased had accumulated certain property described in the bill, and that the defendant became the owner of the real estate by purchase from Johnston, his title dating from the delivery of a warranty deed duly signed and acknowledged by both the said John Johnston and his wife, the same being executed and acknowledged by John Johnston on February 13, 1920, in the State Bank of Auburndale, before said P. E. Braddock as a notary public and two witnesses. That said Johnston, during the year 1919, had bargained with the defendant Thomas for the sale of said grove property, and referred the abstract to Wilson and Swearingen, attorneys, for examination, who reported the *Page 74
necessity of a suit to quiet title; that Johnston employed said firm to file such suit so as to be able to deliver a marketable title to the defendant; that the defendant did not a day of two before the death of said Johnston wrongfully deprive the said Johnston of his property but that the deed was signed and delivered on February 13, 1920, for a valuable consideration, the sum of $10,000.00. That the defendant had never sought to defraud or deceive the deceased or to secure his property, but had always befriended him and helped him financially many times. That while the deceased was at the home of John Henderson at Coronet, the defendant visited him on several occasions; that during none of these visits did the mind of said Johnston appear to be clouded or feeble, and he believed that his illness was not serious and that he would get well; that Johnston was a very taciturn man and would never converse about his personal affairs with the defendant when other people were present. The defendant was never accompanied on any of his visits by Braddock but was accompanied by his brother and one or two other persons at different times.
That during 1917 and 1918 the defendant and Johnston were engaged together in prospecting certain lands for phosphate, upon an agreement to share the expenses thereof equally, and to have an equal interest in any phosphate-bearing lands which were acquired by them; that although they found no lands bearing phosphate in commercial quantities, the expenses of such operation were paid by the defendant Thomas and that Johnston had given him a note, bearing date April 8, 1918, in the sum of $6,500.00, for his half of such expenses. That Johnston paid interest on this note in January, 1920, with certain Liberty bonds held by him at the State Bank of Auburndale, which bonds were credited on the note for interest when the same was turned over to Johnston later. That on February 8, 1920, *Page 75
Johnston borrowed from defendant $500.00 for the purpose of binding a trade for the land at Terra Ceia, and that the defendant had previously loaned him $300.00 in cash, agreeing to accept certain Liberty bonds amounting to $300.00 at par, which were in a Tampa bank. That on a visit to Johnston one or two days before he died, Johnston gave defendant checks as follows: on his checking account at State Bank of Auburndale, $384.59; on his savings account at the same bank, $192.43, closing both these accounts; and on the Latin-American Bank of Tampa, for $703.69, this latter check having been signed in blank as to amount because the amount of interest, and hence the amount of the account, was not known at the time, the same being a savings account; also deceased gave Thomas a written order for $300.00 in Liberty bonds which Thomas had paid for on January 29th, previously. That these checks were given to him by Johnston in consideration of Thomas' kindness to him and his care and affection for him when his own people would have nothing to do with him, and the defendant accepted them in the spirit in which they were given.
That about a week before he died, Johnston appointed defendant as his executor by paper-writing in words and figures as follows:
"Cornette Fla "March 17th 1920
"Robert E. Thomas
"Auburndale Fla.
In the event of my death this is to give you full power to handle the rest of the money that is cumming to me from grove which I sold you at Auburndale Fla, the balance dew me being thirty-four hundred and sixty dollars ($3460.00) out of this amount first you shall pay all of my debts and funeral expenses if there is sufficient left pay as *Page 76
follows to my wife Mrs. E. Johnston twenty-five dollars ($25.00) to my daughter (Tiny) Miss E. Williamson three-fourths of the amount left, and the remainder to my son George Johnston. Address of wife and daughter the Cottage 7 Navy Lane Lerwick Shetland Scotland. Included in expenses mentioned herein I want Mr. John Henderson and girls living with him to be paid five hundred dollars ($500.00) for their trouble and kindness in taking care of me this closing my estate.
"JOHN JOHNSTON (Seal)
"Witness:
"FRED L. THOMAS."
That relying on this paper-writing, the defendant had out of proceeds of the estate of the decedent disbursed $1,728.70 in payment for medical services, funeral expenses, attorney's fees, etc., due by the deceased, and other items, all of which were listed in said answer. These items included $500.00 paid by Thomas to himself to cover the amount of the advance made by him for Johnston at the time of the contract for the purchase of the Terra Ceia property, also $150.00 paid by him to John Henderson and his daughters for their services to the deceased during his last illness. To this list were added two items: "balance due John Henderson, $350.00, and balance due Snively, $228.00. It subsequently appeared in the testimony that the defendant Thomas thought that these two amounts should be paid, the first in order to carry out the expressed wish of the deceased, and the second to pay a valid debt to Snively for fertilizer. After adding these two items to the list, the defendant's answer claims that the balance due by him to the estate of John Johnston amounted to $1,153.25.
The defendant admitted that he and the said Johnston were both members of the same Masonic lodge at Auburndale, but claimed that he had never, by reason of said relation, *Page 77
attempted to deceive or mislead the deceased, but that all of his dealings with him had been honest and honorable and in keeping with the teachings of said order. That defendant stands ready to carry out the wishes of the deceased according to the paper-writing aforesaid, or as the court may direct.
P. E. Braddock filed a separate answer in which he denied all the charges of misconduct against him, or that he had profited in any way by the disposition of the grove property, but alleged that he had purchased from the said Johnston two shares of stock in the State Bank of Auburndale for the sum of $250.00 and that the deceased had assigned the same to him in January, 1920, and that the defendant paid him therefor. He also denied that he ever visited the deceased at Coronet in company with Thomas, or confederated with him in any way. He admitted taking the acknowledgment of Johnston to the deed above described on February 13, 1921, and that he and his wife had signed the same as witnesses.
The complainants contend that the defendant Thomas should be charged with the following items covering assets of the estate of John Johnston which came into the hands of Thomas as executor de son tort:
From sale of the John Johnston orange grove ... $12,000.00 Savings account in State Bank of Auburndale ... 192.43 Checking account in State Bank of Auburndale .. 384.59 Savings account in Latin-American Bank, your city ......................................... 703.69 U.S. Liberty Bonds in Latin-American Bank, your city .................................... 300.00 ---------- Total ....................................... $13,580.71
Complainants admit that defendant Thomas should be credited with the following items paid out by him, being *Page 78
a portion of the items contained in the list set forth in the defendant's answer above referred to, to-wit:
Dr. Crump, medical services .................. $ 105.00 Dr. Byrd, medical services ................... 220.00 Dr. Williams, medical services ............... 11.50 Funeral expenses ............................. 202.50 Wilson Swearingen, legal services .......... 250.00 Wilson Swearingen, legal services .......... 100.25 Hull Jewelry Co., Plant City ................. 15.00 City taxes, Auburndale (M. S. Jones) ......... 27.50
Bob Campbell ................................. 22.50 Fred Thomas, moving man from Auburndale to Terra Ceia to work grove .................... 25.00 __________ Cheshire, work on grove ........... 99.50 -------- Total ..................................... $1,078.75
Complainants deny that the defendant Thomas is entitled to credit for the amount of the note alleged to have been given by John Johnston, to said Thomas in 1918, $6,500.00, and $40.00 for interest, which the defendant Thomas claims was surrendered by him to Johnston and accepted by Johnston as part payment for said grove. Complainants also deny that said Thomas is entitled to credit for the following items contained in the list set forth in defendant's answer as having been paid out by him for the estate, to-wit:
R. E. Thomas advanced for Johnston on Terra Ceia property .............................. $ 500.00 Paid to John Henderson on amount left to him and girls in will .......................... 150.00 -------- $650.00 *Page 79
Complainants also deny that defendant Thomas is entitled to credit for funds held by him for the purpose of paying the following two items:
Balance due John Henderson and girls ......... $ 350.00 Balance due John Snively ..................... 228.00 -------- $578.00
Thus the complainants deny that defendant Thomas is entitled to credit for items claimed by him totaling $7,768.00.
Thus it appears that the complainants claim that the defendant Thomas should account to the estate for the total purchase price of the grove sold by him to Anderson, $12,000.00, and the amount of the three bank accounts, $1,280.71, and the value of the Liberty bonds in the Latin-American Bank, $300.00, a total of $13,580.71. Defendant Thomas claims that he is only due to account to the estate for the balance due by him on the purchase price of the grove as sold to him by Johnston, $10,000.00, less the amount of the note with interest, $6,540.00, leaving a balance on that matter of $3,460.00, from which should be deducted the amounts paid out by him, including the items admitted by the complainants as proper, and also including the $500.00 paid to himself to reimburse him for the amount advanced by him for Johnston on the Terra Ceia property and the amount paid by him to John Henderson and his daughters for their services to the deceased, $150.00, a total of $1,728.75, leaving a balance due by him to the estate $1,731.25, from which he should be allowed to pay the balance due John Henderson and his daughters as provided in the unprobated will, $350.00, and the balance due John Snively for fertilizer, $228.00, accounting to the estate for the remainder, $1,153.25.
The Chancellor found in favor of the contentions of the *Page 80
defendant Robert E. Thomas, on all the matters in dispute and rendered a final decree ascertaining that Robert E. Thomas had in his possession the sum of $1,731.25 belonging to the estate of John Johnston, deceased, and that the defendant P. E. Braddock should account to the estate for the sale of the two shares of capital stock in the State Bank of Auburndale, of the value of $200.00, and adjudged that the complainants recover of the defendant Thomas the said sum of $1,731.25, together with interest at 8% from March 24, 1920, to the date of the decree, making a total sum of $2,299.67, and that the complainants also recover of the defendant one-fourth of the costs of this suit, the said amount found due to be paid to John Logan, Administrator. A recovery was also adjudged in favor of the complainants against the defendant Braddock in the sum of $200.00 and interest, total $268.44, and one-half of the costs of this suit; to be paid to the administrator as aforesaid.
BROWN, J., after stating the facts as above:
The only statutory reference we have as to executors de sontort is found in Section 3750 of the Revised General Statutes, which reads as follows: "No executor de son tort. — No person shall be liable as executor de son tort to recover from him a debt by a deceased person, but any person taking, converting or intermeddling with the property of a deceased person shall be liable to the executor, administrator or curator when appointed for the value of all the property so taken or converted, and for all damages to the estate of the deceased caused by his wrongful action; but this section shall not be construed so as to prevent a creditor of a deceased person from suing one in possession of property fraudulently conveyed by such deceased person, for the purpose of setting aside such fraudulent conveyance." *Page 81
The foregoing section appears to be confirmatory of the common law on this subject so far as it goes. We find no former decision of this court construing said section. In Sec. 2903, page 1211, of 24th C. J., it is said: "An executor de son tort
is a person who without authority intermeddles with the estate of a deceased and does such acts as properly belong to the office of an administrator, and thereby becomes a sort of quasi executor, although only for the purpose of being sued or made liable for the assets with which he has intermeddled. The designation is inapt in that it applies the term 'executor' to intestate as well as testate estates, and also in that it gives to a person who has merely incurred a certain liability by reason of his intermeddling an official title corresponding with that of a duly appointed representative, and in many States the so-called office of executor de son tort has been abolished by statute, or is considered inconsistent with the prevalent system of administration. The abolition of the fiction of the office does not, however, relieve the wrongdoer from liability for his unauthorized intermeddling, but affects only the right to enforce such liability." See also 11 R. C. L. 456-7.
Intermeddling may consist in collecting or taking possession of the assets, selling the property of the estate, paying out money of the estate in settlement of debts or otherwise, or any acts which are of the character which usually evince a legal control. 24 C. J. 1212. But it is said in the same section that intermeddling with real estate will not constitute a person an executor de son tort. See also 11 R. C. L., 457.
An executor de son tort is subject to all the liabilities of an ordinary executor or administrator without being entitled to any of his privileges, but although he cannot obtain any personal advantage from his intermeddling, he *Page 82
can use proper means to protect the assets of the estate. 24 C. J. 1216, and 11 R. C. L. 461, citing a number of cases.
The true representative is bound by those acts of an executorde son tort which are lawful and such as the true representative would be bound to perform in the due course of administration, but not by any other acts of the intermeddler. 24 C. J. 1219, 1221. The intermeddler will not be allowed any credit for debts which he has discharged which were not legal claims against the estate; nor is the executor de son tort
entitled to any set-off by reason of the application of assets to his own claim against the decedent. 24 C. J. 1221, citing California, Kentucky, Maryland, Massachusetts, New Hampshire, North Carolina, Virginia, and English cases; 11 R. C. L. 463.
As to who may enforce liability against an executor de sontort, the general rule is that the lawful executor or administrator is the proper person. At common law an executorde son tort could be sued by creditors of the decedent, and it is held by some authorities that the legatees or next of kin may enforce such liability, although the more generally accepted view is that they have no such right, at least, while there are unpaid debts of the decedent. 24 C. J. 1217; 11 R. C. L. 461-2. The effect of our statute, Sec. 3750, Revised General Statutes, appears to be in line with the weight of authority to the effect that the proper party to require an accounting by any person intermeddling with the property of a deceased person is the executor, administrator, or curator, when appointed.
It, therefore, appears that the widow and son were not necessary parties complainant as to those features of the bill praying an accounting as against the defendant Robert E. Thomas, though the bill as originally filed praying for cancellation of the deed of the decedent to said Thomas made them proper parties as to that matter. This appears *Page 83
to have been recognized in a way by the Chancellor, who decreed that the amounts found to be due to the estate be paid to the administrator, who was one of the parties complainant.
As to the matters in dispute, we will first consider the question as to whether or not the defendant Thomas should be charged with all or any part of the proceeds of the sale of Johnston's grove place as being assets of the estate. The Chancellor manifestly took the view that the sale by the decedent to Thomas was a legitimate transaction concluded during the life time of the decedent and that Thomas was only chargeable with the balance due on the purchase price of $10,000.00 after deducting the amount of Johnston's note to him, which, with interest, amounted to $6,540.00, and that Thomas' sale of the property to Anderson for $12,000.00 was his own affair and that he was not accountable to the estate for any part of the purchase price or for the profit of $2,000.00 which he made on the transaction. While the testimony of Thomas as to his transactions with the deceased was introduced in evidence before the special master over the objection of the complainants and reported to the Chancellor along with the other testimony, we will assume that the Chancellor did not consider this testimony of Thomas, which was plainly incompetent under Section 2705 of the Revised General Statutes.
The witness John Dampier, who had been a friend of Johnston for a good many years, testified that Johnston, during his last illness, told him that he had sold his place in Auburndale to Anderson for $12,000.00. Also that defendant Thomas, on one of his visits to Mr. Henderson's to see Mr. Johnston, during his illness, told him that he had sold said place "for Uncle Jack," and witness was quite sure that he named the same price, but did not state to whom he had sold it. Witness John Henderson, a long-time *Page 84
friend of the decedent, and at whose home he passed away, testified that Thomas told him during Mr. Johnston's last illness that he had sold the latter's grove at Auburndale for him and was not charging him anything for making the sale; that either Thomas or Johnston told him that the price was $12,000.00.
He also testified that Johnston told him during his last illness that he wanted to sell Auburndale property and get another place down in Terra Ceia Island, and that he had located a place belonging to a man named Blood and there was $500.00 up on it. He also said that Johnston told him previously, in the latter part of 1919, that he was trying to sell his Auburndale place. The witness Burnett testified that after the funeral he had a talk with Thomas and that Thomas told him that he had sold the grove for Johnston to Mr. Anderson, but that he was not getting anything for it at all, that he was just making the sale on account of friendly feelings. Attorney B. C. Wilson testified that he drew the deed in 1919 for Mr. Johnston, which was finally used in the transfer of the property to Thomas, and mailed it to Johnston at Auburndale, and that it was returned to his office after it came back from Scotland, where it had been sent during 1919 for execution by Mrs. Johnston, and that he turned it over to Thomas upon a written order signed by Johnston, dated January 29, 1920; that the name of the grantee in the deed was left in blank and witness did not know who the purchaser was to be. There was introduced in evidence a letter by the defendant Thomas to George W. Johnston, son of the deceased, dated March 26, 1920, two days after Johnston's death, in which, among other things, it is said: "George, your father deeded me all the property he had, so I could settle up all his debts, when I get things all settled I will have some money for you, so you keep on writing me so I will no where you are. When I *Page 85
get it I also am going to send Tena and your mother some money, two." Another letter in evidence written by Thomas to the same party, reads as follows: "You ask me to make a statement in regards to how your Father left things. He deeded his place to me and the other little stuff and ask me to sell it and pay all his and expenses and if I had enough left after this was done to send two hundred fifty dollars, and to give your sister one thousand Dollars and your Mother twenty-five Dollars, and if there were any left it was mine for my trouble.
"So I have sold the place George but I had to sell it on installment plans and it will be about July 20th before I will have any money for you, but I think I will have enough to pay you all the full amount he wanted you to have."
He also wrote a similar letter to Christina Williamson, Shetland, Scotland, a daughter of Johnston's wife by a former marriage, for whom it appears the decedent had entertained considerable affection.
On the other hand, witness for the defendant, Fussell, who visited Johnston with Thomas several times during his last illness, testified that during one of these visits Mr. Johnston had told him that he was selling his home place in Auburndale to Mr. Thomas, that it was too large for him and he was going to Terra Ceia and buy a place there, that he was selling his Auburndale place to Thomas for $10,000.00. In connection with the drawing of the deed and perfecting of the title, Attorney Wilson testified that he was under the impression that Johnston stated to him that he was perfecting the title to the property for the purpose of selling same to Mr. Thomas. Witness Nunn testified that about the middle of February, about a month before Mr. Johnston's death, the latter and defendant Thomas asked him to figure the amount of interest due on the note given by Johnston to Thomas, that he figured the *Page 86
interest up to that date, and that the note was closed out as payment by Thomas to Mr. Johnston on the grove, Thomas to pay the difference. That prior to that time, about January 1, 1920, he had figured the interest on this same note and that it amounted to about $720.00, which he understood was paid to Thomas by Johnston with some Liberty bonds, and that they had the Liberty bonds with them at Thomas' office. That at the time he figured the interest the second time, about the middle of February, he also had the deed to the grove property and he supposed the note was delivered at that time, but he could not testify positively. That he had frequently performed similar services for Johnston, and that some time before this matter was closed Mr. Johnston had told him that he and Mr. Thomas were figuring on the sale, and that they had agreed that he would sell the property to Thomas for $10,000.00. Defendant Braddock and his wife testified that on February 13th Braddock took the acknowledgment of Mr. Johnston to the deed, and they both signed as witnesses, and the deed was handed back to Mr. Johnston. This was done at the bank to which Thomas and Johnston came together. That the name of Robert E. Thomas appeared in the deed as the grantee, and after its execution the deed was handed back to Mr. Johnston. Braddock said he could not be positive but that he thought Mr. Johnston then delivered the deed to Thomas. Witness E. A. Stevenson testified that he had known Mr. Johnston for several years and that they had had frequent conversations in the park at Auburndale and on one occasion after Christmas and before Johnston's death, Johnston told him that he had sold his grove property to Mr. Thomas, and that he wanted his daughter to have something out of it; that he owed Mr. Thomas quite an amount and he wanted Mr. Thomas to have what was left. In answer to the question, "Did he say or give you any idea *Page 87
of how much he would have left when settlement was made?" the witness answered, "Well, he said he wouldn't have no big amount; that was just the remark he made to me." Witness Fred Thomas, a brother of Robert E. Thomas, testified that he went down to Coronet with his brother several times to call on Mr. Johnston during his last illness, and that Mr. Johnston requested his brother to draw up the paper-writing, purporting to be a will, which is quoted hereinabove as a part of the defendant's answer, and which Fred Thomas signed as a witness. He testified that this document was written by his brother and Mr. Johnston told him what he wanted him to write, and that after it was written, Mr. Johnston signed it and at his request the witness signed it. It will be recalled that this document contains an acknowledgment that the balance due by Thomas to Johnston on the grove was $3,460.00. Witness said that this writing was prepared and signed just a few days before Mr. Johnston's death, and it bears date of March 17, 1920, just one week prior to the date of his death. Complainants question the genuineness of the signature of John Johnston to this document, but upon consideration of the testimony and a careful comparison of the signature with the various admittedly genuine signatures of Mr. Johnston on several of the exhibits certified to this court, we are satisfied the Chancellor correctly concluded that the signature is genuine.
There was, therefore, competent testimony before the Chancellor upon which to base his conclusion that the decedent had sold and conveyed the place to Thomas for $10,000.00, crediting on the purchase price $6,540.00 due by Johnston to Thomas by note, which was closed out as part payment. While there is abundant evidence in the testimony that there was a genuine attachment between these two men, Johnston and Thomas, and that they had been *Page 88
very close and devoted friends for several years, and reposed absolute confidence in each other, and that Johnston sought the advice of Thomas about his business affairs; that Thomas had shown great kindness and consideration for this lonely and rather taciturn old man whose wife had remained in Scotland and lived separate and apart from him for over thirty years, and whose son had seen very little of his father, — there is no foundation in the testimony for any reasonable doubt of the mental soundness of Johnston up to practically the very last. The testimony indicates that his mental faculties were unimpaired. He might have been, and no doubt was, strongly influenced by any advice that Thomas might have seen fit to give him on account of his absolute confidence in him, but his mind was apparently his own and perfectly sound until practically the very end.
He and his wife had long been more or less estranged and separated; his son has seen very little of him for some years, though he did visit him during his last illness. Mr. Johnston evidently received much comfort from and placed great store upon the friendship and companionship of Thomas. Under such circumstances, it was not unnatural that he should want Thomas to receive something from his estate. There is no law prohibiting a man from making gifts to his friend, or from trading with his friend on favorable or even generous terms, provided such friend makes full disclosures of all pertinent facts and takes no unfair advantage of the trust and confidence reposed in him.
There can be little doubt that a difuciary or confidential relation existed between Thomas and the decedent, and that if this confidence was abused or this influence flowing therefrom so exerted as to obtain an unfair advantage of the confiding party, the person so availing himself of such *Page 89
position would not be permitted to retain the fruits of such unfair exercise of such advantage, although the transaction could not have been impeached if such confidential relation had not existed. See Dale v. Jennings, 107 So. 175, and authorities cited in the opinion by Mr. Justice TERRELL. Where such a relation of confidence exists as will enable the person in whom the confidence or trust is reposed to exert influence over the person trusting him, while equity will not deny the possibility of valid transactions between the parties, yet where the transaction between them enables the superior party to obtain a benefit, equity raises a presumption against the validity and casts upon that party the burden of proving his compliance with equitable requisites and thereby overcoming the presumption. One of those requisites is that there shall have been the fullest and fairest explanation and communication of every material fact resting in the breast of the one who seeks to establish a contract with a person so trusting him. See 2nd Pomeroy's Eq. Juris., 4th Ed., Secs. 902, 955, 956. Yet where the confiding party has departed this life, we have the somewhat anomalous situation that the burden is placed upon the confidential friend who dealt with the deceased to show that he made full and fair communication of all the material facts to the deceased, and yet he is not a competent witness to testify to any such communications himself in any suit between him and the executor or administrator of the estate of such deceased party. This rule may sometimes work a hardship on an honest party who happens to have no other evidence but his own by which to prove his communications with the deceased, or otherwise show the entire bona fides of the transaction. But death having closed the lips of one, the law closes the lips of the other. Sec. 2705, Revised General Statutes. The law on this subject is evidently based *Page 90
upon the same philosophy which animated the Scottish bard when he wrote:
"I'll no say mankind are villains a'; The real, hardened, wicked, Who know nae check save human law Are to the few restricket;
But, och, mankind are unco weak, Not always to be trusted — When self the wavering balance shakes 'Tis seldom right adjusted."
Under these principles, it was undoubtedly the duty of Thomas to disclose to Mr. Johnston the fact that he, Thomas, could sell the property to Anderson for $12,000.00. It will be recalled that he made a trade with Anderson to sell him this grove property on January 24, 1920, for $12,000.00, while he did not close the trade with Mr. Johnston by taking a deed to the property until February 13th, 1920 (though there is evidence indicating that the trade with Johnston dated back several months.) So at the time he closed the trade with Johnston by which he, Thomas, secured the property for $10,000.00, he had already arranged to sell the property to Anderson for a profit of $2,000.00. On this point, it appears from the testimony of several of the witnesses introduced by the complainants themselves that Johnston must have known that Anderson would pay $12,000.00 for the property. Their testimony was to the effect that Johnston told them that he, Johnston, had sold the property to Anderson for $12,000.00. There was, therefore, evidence from which the court below could reach the conclusion that at the time Mr. Johnston executed the deed naming Thomas as grantee, which had been signed by his wife several months previously with the name of the *Page 91
grantee left in blank, to Mr. Thomas, he knew that the property could be sold, or that Thomas would sell the property, to Anderson for $12,000.00. The testimony of Thomas in regard to this transaction cannot be considered. What Mr. Johnston's motive was in deeding the property to Thomas for $10,000.00 when he knew that Anderson would buy for $12,000.00 is not expressly disclosed by the competent testimony in the case. He may have desired Mr. Thomas to have the benefit of this profit on account of his past services and friendship. On the other hand, it is possible that he may have considered Thomas a mere conduit through whom the trade with Anderson should be consummated and conveyed the property with the idea that whatever profit was derived should be considered assets of his estate, though this is quite strongly rebutted by the so-called will, reciting the balance due by Thomas. There is another motive which might have prompted him, suggested by Thomas' letter to Mr. Johnson's son and step-daughter, wherein Thomas stated that Mr. Johnston had deeded him all his property and put everything in his name so that he, Thomas, could settle up all his debts. It may be that Mr. Johnston, realizing that his illness might result fatally, preferred to convey the property directly to Thomas, allowing him to take credit for the note and make any profit that might finally be derived from the sale to Anderson if consummated, and use the balance in settling up his debts, rather than await the final consummation of the sale to Anderson. Anderson had paid $100.00 to Thomas at the time of his trade on January 24th, and on January 29th, he paid him $900.00 more, and there was an agreement between them that the next payment should come out of the fruit crop on the place, so on April 24th, Anderson paid Thomas $4,415.72, adding enough to make a total payment of $6,000.00, when a new contract was made for the payment of the balance. *Page 92
Anderson testified that at the time of the trade on January 24th he understood that Thomas had the sale of the property, or owned it, he did not know which. So, it appears that at the time Mr. Johnston conveyed the property to Thomas, and at the time he signed the paper-writing in the nature of a will, which, by the way, was never attempted to be probated, only $1,000.00 had been paid by Anderson as a binder on the trade with Thomas. Whatever may have been his motive, there was a substantial evidence to sustain the chancellor's conclusion that Mr. Johnston conveyed the property to defendant Thomas with knowledge of what Anderson was willing to pay for the property, and the paper-writing signed by him just a few days before his death showed that he did not expect any further payment from Thomas on the grove beyond the balance of $3,460.00, which was left after the application of the amount of the note on the purchase price of $10,000.00 testified to by witnesses Nunn and Stevenson, and the credibility and disinterestedness of whose testimony the record discloses no reasonable ground to question. While the question above discussed is not without difficulty, we cannot say from the consideration of all the competent testimony that the Chancellor erred in his conclusion on the facts in regard thereto.
It appears, however, that the defendant Thomas is chargeable, and should be held to account to the complainant administrator for most of the remainder of the disputed items. It appears from the testimony of the witness Fussell that all the checks closing out the three bank accounts were delivered by Mr. Johnston to Mr. Thomas at Coronet on the afternoon of March 23rd, the day before Johnston's death. He died during the night, in the early morning of March 24th. The two checks on the State Bank of Auburndale, one to close out the checking account and *Page 93
the other the savings account, are stamped paid March 24th, and the check on the Latin-American Bank for $703.69 is stamped paid March 25th. Fussell was a witness introduced by the defendant. If his testimony is correct, it is hardly possible that these checks were paid before Mr. Johnston's death. All three checks are dated March 22nd, but the body of the checks was evidently written by some person other than Johnston or Thomas. The pass book of Mr. Johnston with the Auburndale State Bank shows that the savings account was closed out on March 22nd by the withdrawal of $193.43 but the check was stamped paid March 24th, and the ledger shows that the checking account was closed by the check of $384.59 on March 24th, and Thomas in his testimony stated that this check was delivered to him the day before Mr. Johnston's death. The order for the Liberty bonds was dated March 15th, and was typewritten, but according to Fussell's testimony it was not delivered to Thomas until the afternoon before Mr. Johnston's death when the checks were delivered. The testimony for the defendant Thomas does not make it at all clear or certain that these three checks, or any of them, were paid, or the $300.00 of Liberty bonds, were delivered before Johnston's death. In fact, the tendency of the evidence is to show that such payment of checks and delivery of bonds did not take place until after his death. It follows that such bank balances and bonds were still assets of the estate of John Johnston at the time of his death and that the Court below should have required defendant Thomas to account for them to the lawful administrator of the estate subsequently appointed.
"As a general rule, the death of the drawer of a check operates as a revocation of the authority of the bank to pay, and the bank is liable if it pays after notice of such death; but a bank incurs no liability by the mere fact of paying *Page 94
a check after the drawer's death, where at the time of such payment it did not know the fact. It has been considered that, even though the circumstances are such that a bank has incurred no liability by paying a check after the drawee's death, the payee who has received the proceeds after the drawer's death must refund the amount to the drawer's estate." 7 C. J. 702-704, and cases cited. Section 4842 of Revised General Statutes, being one of the sections relating to negotiable instruments, provides: "A check of itself does not operate as an assignment of any of the funds to the credit of the drawer with the bank; and the bank is not liable to the holder, unless and until it accepts or certifies the check."
This makes it unnecessary for us to consider the much mooted question in this case as to whether the signatures to these three checks and the order for the bonds were genuine signatures of the deceased.
As to the question whether the purported signature of John Johnston to the assignment of the two shares of stock in the State Bank of Auburndale to Defendant Braddock, was or was not genuine, upon a careful consideration of all the testimony on this point, as well as of the admittedly genuine signatures of Mr. Johnston which were introduced in evidence and certified to this Court, we are not able to say that the Chancellor erred in his conclusion that such signature was not the genuine signature of Mr. Johnston, and we find no reason to disturb his finding on that point. Boyd v. Gossar, ___, Fla. ___, 82 So. 758, 6 A. L. R. 500.
In view of the substantial services rendered by Mr. Henderson and his daughters to the deceased during his last illness, we would not be authorized to disturb the ruling of the Chancellor that defendant Thomas should be allowed credit for the $150.00 paid to them.
Under the law as hereinabove set forth, we conclude that *Page 95
the Court below was in error in allowing defendant Thomas credit for the $500.00 paid to himself out of the funds of the estate coming into his hands to reimburse him for the amount which the evidence tends to show he had advanced to the deceased during his lifetime as part payment on the purchase of the Terra Ceia property. As we have already seen, an executorde son tort cannot pay to himself any debt due him by the deceased, no matter how just and valid it may be, and must account for any sum so paid to the lawful administrator subsequently appointed. For payment of his debt he must look to the lawful administrator just the same as any other unpaid creditor of the estate.
To sum up, we have reached the conclusion that in addition to the sum of $1,731.25, with interest thereon from March 24, 1920, which the Court below decreed should be paid by defendant Thomas to the complainant administrator, there should have been added a sum sufficient to cover the following:
Amount paid by Thomas to himself to cover sum claimed to have been advanced by him for Johnston on Terra Ceia property ............. $ 500.00 Balance of savings account in State Bank of Auburndale .................................. 192.43 Balance of checking account in State Bank of Auburndale .................................. 384.59 Balance of Savings account in Latin-American Bank ........................................ 703.69 Value of U.S. Liberty bonds delivered to Thomas by Latin-American Bank, par value $300.00, market value indicated by evidence $300.00 .. 300.00 --------- Total ..................................... $2,080.71
To these additional items should be added interest from the date of Johnston's death. In other words, the decree *Page 96
of the Court below should have required the defendant Thomas to account to the complainant administrator for the total sum of $3,811,96, together with interest thereon at 8% from March 24, 1920, to the date of the decree.
Reversed and remanded with instructions to the lower Court to amend its final decree so as to accord with the conclusions set forth in this opinion.
Reversed and remanded with instructions.
ELLIS, C. J., AND STRUM, J., concur.
WHITFIELD, P. J., AND TERRELL AND BUFORD, J. J., concur in the opinion.
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07-05-2016
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Each count of the amended declaration in this case showed that the Citizens Bank Trust Company of Tampa, in the execution of certain notes which were signed by it as follows: "Citizens Bank Trust Company, a corporation, as Trustee, for Albert H. Lieberman, By W. H. Trice, V. Pt." was acting for the benefit of a third person.
To hold that the bank thereby bound its own assets to the absolute payment of the notes in question, would be to say that the bank had power to, and did, lend its credit for the benefit of another. And such holding would be in direct contravention of the decision of this Court in Cottondale State Bank v. Oskamp Nolting Co., 64 Fla. 36, 59 Sou. Rep. 566, Ann. Cas. 1916D 564.
The power of a bank existing under the laws of the State of Florida to lend its credit has been directly referred to by the Circuit Court of Appeals of the Fifth Circuit in Sponge Exchange Bank of Tarpon Springs v. *Page 459
Commercial Credit Co., 263 Federal 20, where the Court said:
"The law under which the Bank exists does not permit it to lend its credit to paper which it does not own, and in which it has no beneficial interest. General Statutes of Florida, 2707; Cottondale State Bank v. Oskamp Nolting Co., 64 Fla. 36, 59 So. 566, Ann. Cas. 1916D, 564. The Florida law on this subject, with notice of which parties dealing with the Bank are chargeable, is in conformity with the generally prevailing law governing banks. To permit banks to have and exercise the power of lending their credit for the sole benefit and advantage of others would be detrimental to the interests of depositors, stockholders, and the public generally. Commercial National Bank v. Pirie, 82 Fed. 799, 27 C.C.A. 171; Bowen v. Needles National Bank, 94 Fed. 925, 36 C.C.A. 553; Merchants' Bank of Valdosta v. Baird, 160 Fed. 642, 90 C.C.A. 338, 17 L.R.A. (N.S.) 526; Note Ann. Cas. 1916D, 554."
The rule that courts will of their own motion take notice of illegal contracts coming before them for adjudication, as applied to unauthorized assumptions of contractual liabilities by State banks, was recently discussed by MR. CHIEF JUSTICE BUFORD in Citizens Bank Trust Co. v. Mabry,102 Fla. 1084, 136 Sou. Rep. 715, and applied in that case.
The recovery which was allowed in the recent case against the statutory liquidator of the Citizens Bank Trust Company violates the principle of law that a claim of contractual liability will not be upheld and enforced against a State Bank on an agreement or undertaking by the bank to lend its credit to a third party. This rule is applicable whether the agreement or undertaking was direct or indirect, or arises by reason of attempted unauthorized execution of promissory notes on behalf of third parties, or otherwise.
To hold the bank liable in this case on the notes executed by the Citizens Bank Trust Company purportedly on *Page 460
behalf of Lieberman, on the theory that the bank in contemplation of law bound itself, by reason of the fact that it failed to obtain authority under seal to bind Lieberman on a sealed instrument, would be to impute a contractual liability to the bank, which would have been beyond its express or implied powers to assume had it directly attempted to have done so. Therefore the recovery had was on a contractual liability which could not and did not exist and the judgment awarding it was erroneous.
The judgment is reversed.
WHITFIELD, P.J. AND TERRELL, J., concur.
BUFORD, C.J., concurs in the opinion and judgment.
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07-05-2016
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Writ of error dismissed on motion of counsel for plaintiff in Error.
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01-03-2023
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07-05-2016
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https://www.courtlistener.com/api/rest/v3/opinions/3838507/
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Proceeding in the matter of the estate of Lillian *Page 77
R. Christofferson, deceased, wherein petition to contest will of the deceased was filed by L.S. Christofferson and others, as contestants, against Gerald Christofferson and another, as proponents. From decree sustaining validity of the will, the contestants appeal.
AFFIRMED.
This is an appeal from a decree of the circuit court of Marion county sustaining the validity of the last will and testament of Lillian R. Christofferson, who died May 30, 1945. The appellants, Lauren, sometimes referred to as Loren, George and Royal Christofferson, and Genevieve Dunning, are the four eldest children of the deceased. Her youngest sons, Gerald Christofferson, individually and as executor of the will, and Burns Christofferson are the respondents.
The will was executed in Salem, Oregon, on the 26th day of March, 1931. The subscribing witnesses thereto were Dr. R.E. Lee Steiner, superintendent of the Oregon State Hospital, and R.H. Bassett, an attorney in Salem. Under the terms of the will one-half of a 20-acre tract of land, located about seven miles northeast of the city of Salem, was devised to Burns and the other half to Gerald. All the rest, residue and remainder of her estate was devised and bequeathed to her six living children, share and share alike.
Contestants, appellants in this court, attack the will on the grounds that (1) it was not duly executed; (2) the testatrix was of unsound mind and did not possess testamentary capacity at the time of its execution; and (3) it was the result of undue influence and coercion by Gerald and Burns Christofferson. *Page 78
In 1908 the Christofferson family, consisting of Lillian R. Christofferson, her husband Hans Christofferson, and six children, moved from La Grande, Oregon, and located upon the 20-acre tract of land hereinbefore mentioned. Hans Christofferson, in the fall of 1913, suffered a paralytic stroke which left him partially disabled. In February or March, 1914, he again suffered a stroke which rendered him permanently and totally disabled. Shortly thereafter Mrs. Christofferson, who was then about 46 years of age, became depressed and melancholy and on April 21, 1914, on complaint of her daughter, was committed to the Oregon State Hospital and discharged therefrom on May 18 of that year.
In 1918 one of Mrs. Christofferson's sons was killed while serving with the armed forces. Her son-in-law died in the same year. These bereavements and the difficulty experienced by her in getting someone to farm the 20-acre tract caused Mrs. Christofferson considerable worry. September 10, 1920, on her own application, she was admitted to the Oregon State Hospital for treatment and discharged on the 19th of that month. The record of the state hospital under date of September 16, 1920, in regard to this commitment contains the following statement: "This woman came under Voluntary Commitment. She was previously an inmate for a short time in 1914. Suffering from mild depression. Her condition then was very similar to her present state of mind. Her husband is paralyzed and she is said to have had much to worry her at home and felt the need of some rest and treatment. She is now much more cheerful and plans to return home next Sunday." September 19, 1920, she was "discharged as improved."
She was thereafter voluntarily committed to the *Page 79
state hospital and discharged therefrom on the following dates: Committed May 28, 1926, discharged June 9, 1926; committed June 20, 1926, discharged July 2, 1926. On July 8, 1926, she was involuntarily committed for the second time, and on August 4 of that year paroled to her son, Gerald Christofferson "as recovered". She was granted a full discharge on September 1, 1929. The last commitment occurred on May 3, 1930, and was voluntary, and she was discharged on May 22 of that year. The last involuntary commitment which occurred on July 8, 1926, was not due to any material change in Mrs. Christofferson's condition but to facilitate her admission and release or parole from the hospital. Under a voluntary commitment, an applicant could not be detained more than 30 days. Ch. 125, Oregon Laws, 1919, codified as § 127-214, O.C.L.A. In regard to the last commitment the hospital record contains the following:
"May 3, 1930: Sixth commitment. Has been at home with her children since her parole from the institution in August, 1926. Her husband is partially paralyzed and the care of him was too much for her she states. She asked to be returned here so that she could get a rest. Is in very good physical condition, is quiet and orderly and is cooperating well. Diagnosis: 13-B, depressive type.
"May 22, 1930: Full discharge granted this day. Going to Salem, Ore. Condition, recovered."
Hans Christofferson died on September 24, 1930. He was named as beneficiary in the war risk insurance policy issued by the government to his deceased son and had been receiving the payments thereon. After his death Mrs. Christofferson sought advice concerning the unpaid balance on the policy and was referred to Mr. Bassett, who was familiar with such matters. This was in October, 1930. In November of that year a *Page 80
petition was filed in the probate court for the administration of the deceased son's estate, and Gerald Christofferson was appointed administrator of that estate.
During her conferences with Mr. Bassett concerning her deceased son's estate, Mrs. Christofferson discussed with him the preparation of her last will and testament. Because Mr. Bassett knew of Mrs. Christofferson's previous commitments to the Oregon State Hospital, he arranged to have Dr. Steiner as one of the subscribing witnesses to her will, which was executed in Dr. Steiner's office.
On the same day that the testatrix executed the will, she signed and verified a petition for the appointment of a guardian of her estate. In it she alleged that she was owner of the 20-acre tract of land, to which we have referred, of the approximate value of $3500, and of personal property of the approximate value of $4,800. The petition then continues as follows:
"That during the past fifteen years or thereabouts, to and until September, 1930, my deceased husband was an invalid, requiring my constant care and attention; and that because of the work and the many worries falling upon my shoulders in the care of my deceased husband and the rearing of my children, and the managing of the property, particularly the home place, I have, upon several occasions, become sick in mind and body, and during the time of such sickness when run down and in a weakened condition, been treated for a mental sickness at the Oregon State Hospital; the last occasion being as a voluntary patient from May 3, 1930 to May 21, 1930, and on said last named date, I was discharged as cured, and that said hospital has no further jurisdiction over my person. That such periods of sickness have only been of temporary duration and at infrequent intervals, but I am advised, *Page 81
and believe, and therefore allege that when my physical condition is run down and I am weakened, my mental sickness is of such a nature that it might recur, and because of my age and the possibility of such sickness recurring, I believe, and therefore allege that it is to the best interests of my estate and to the interests of my children that a suitable and proper guardian be appointed to take charge of my properties and to manage the same and thereby avoid, if such a thing is possible any difficulties or controversies between my children relative to the management of my properties."
This petition was filed on April 3, 1931, and on the same day the United States National Bank of Salem, Oregon, was appointed guardian of her estate.
The first contention urged by the contestants is that the proponents have failed to prove that the will was duly executed. In support of this proposition they call attention to Dr. Steiner's testimony in which he stated: He did not know that the signature on the will was that of Mrs. Lillian Christofferson; he did not know that there was a signature on the will at the time he signed as a witness; Mrs. Christofferson did not indicate to him that the instrument was her last will and testament; he signed the will in the presence of Mrs. Christofferson, at the request of Mr. Bassett who "represented her as her attorney"; he had no clear recollection of having seen Mrs. Christofferson sign the will; and he might have seen her signature on the will before he signed it. He further testified as follows:
"Q. Do you recall any of the circumstances that led up to the attestation of that instrument? Do you recall anything about that? A. Nothing except that she was making her last will.
"Q. You knew she was making her last will? A. That was my impression." *Page 82
The will has the following attestation clause, signed by the subscribing witnesses hereinbefore mentioned:
"The foregoing instrument, consisting of three pages, including this page, was signed, sealed, and declared, and published by the said Lillian R. Christofferson, Testatrix therein named as and for her Last Will and Testament, and her sole and complete act and deed in the presence of us, who at her request and in her presence and in the presence of each other have subscribed our names as witnesses thereto, this twenty-sixth day of March, A.D. One Thousand Nine Hundred and Thirty One, and we, and each of us do hereby certify that the name of said Testatrix was duly made on said foregoing instrument by herself and was seen thereon by us before we signed as witnesses as aforesaid, and that we believe her to be, at this time, of sound mind and memory."
Section 18-201, O.C.L.A., provides: "Every will shall be in writing, signed by the testator, or by some other person under his direction, in his presence, and shall be attested by two or more competent witnesses, subscribing their names to the will, in the presence of the testator." This section, and not § 2-808, O.C.L.A., relied upon by the contestants and which defines in general terms a "subscribing witness", is controlling in the execution of wills. In re Estate of Shaff, 125 Or. 288,266 P. 630; In re Estate of Neil, 111 Or. 282, 290, 226 P. 439. It is not necessary that the witnesses should sign in the presence of each other, nor is it necessary that the testator should declare the instrument to be his last will. If the testator actually signs the will and the witnesses attest his signature at his request, it is sufficient even though the witnesses may not know the purport or contents of the instrument. In re Estate ofNeil, supra; In re Estate of Shaff, supra; In re Davis'Will, 172 Or. 354, 362, 142 P.2d 143. *Page 83
Dr. Steiner admitted that Mr. Bassett had asked him in the presence of the testatrix to witness the will. He knew that Mr. Bassett was acting for her, and this action by Mr. Bassett was a sufficient request to meet the requirement of the statute.Skinner's Will, 40 Or. 571, 62 P. 523, 67 P. 951; Ames' Will,40 Or. 495, 67 P. 737. In addition to this testimony Mr. Bassett testified that Mrs. Christofferson signed the will in the presence of the subscribing witnesses and that they, in her presence and at her request and in the presence of each other, subscribed their names thereto. This testimony has not in any way been contradicted. Dr. Steiner, by reason of a failing memory, was unable to recall the facts relating to the execution of the will. He remembered signing it and the fact that Mrs. Christofferson was present at the time he signed. In the case of Skinner's Will, supra, this court, after reviewing decisions from other jurisdictions involving the failure of subscribing witnesses to recollect important facts concerning the execution of the will, observed:
"* * * These cases, of singular analogy to the one at bar, are sufficient to illustrate the principle upon which the fact of attestation and the due execution of a will may be established; and where, by reason of a failing memory, a witness is unable to recall the fact as to whether he or she saw the testator sign, or whether the testator signed first or last, or whether the witness was requested by the testator to attest the writing, the hiatus is supplied, in the absence of positive testimony to the contrary, by a presumption that the requirements of the law have been observed, which completes the proof and renders it sufficient upon which to direct a probate. And this is especially so where accompanied by an attestation clause reciting an observance of the necessary statutory formalities". *Page 84
This court is committed to the doctrine that an attestation clause, which recites compliance with the statutory requirements of execution of a will and is signed by the witnesses, is prima facie evidence of the due execution of the instrument. In re Fletcher's Estate, 147 Or. 139, 143,32 P.2d 123; In re Davis' Will, supra; In re Wade's Estate,174 Or. 531, 149 P.2d 947. There was no attempt on the part of Dr. Steiner to impeach the due execution of the will. About 15 years had elapsed between the execution thereof and the time he gave his testimony and he was simply unable to remember all of the facts in connection with its execution. There is no merit in the contention of the contestants that the record fails to show the due execution of the will.
We shall now consider the question whether Mrs. Christofferson possessed testamentary capacity on March 26, 1931, the date she signed the will here involved. Testimony has been introduced by both the contestants and proponents relating to her physical and mental condition from the time of her first commitment to the Oregon State Hospital, in 1914, to the date of her death in 1945. The all-important issue is the condition of Mrs. Christofferson's mind on the date she attached her signature to the will. Evidence of her mental condition, as revealed by her acts, conduct, habits and conversation, both before and after March 26, 1931, is relevant only for the purpose of throwing light on the condition of her mind at the crucial moment. The probative force of such evidence depends upon the relation in time between the statements or conduct of the testatrix and the date of the execution of the will. In re Bond's Estate, 172 Or. 509,520, 143 P.2d 244; In re Morley's Estate, 138 Or. 75,5 P.2d 92.
On proponents rested the burden of proving that *Page 85
the testatrix had sufficient testamentary capacity to execute the will, but they had the benefit of the presumption that she was competent inasmuch as the will was executed in due form. In reWill of Robert Carr, 121 Or. 574, 580, 256 P. 390; In reMorley's Estate, supra; In re Shanks' Estate, 168 Or. 650,662, 126 P.2d 504.
We shall now refer briefly to the testimony of proponents' witnesses. Both of the subscribing witnesses testified that in their opinion Mrs. Christofferson was, at the time she signed the will, competent to execute the same. From some time in October, 1930, up to the day of the execution of the will, Mr. Bassett saw Mrs. Christofferson frequently and discussed various matters with her and on that day he was with her from three to four hours. He was thus given an excellent opportunity to form an opinion as to her sanity. Dr. Steiner, an eminent psychiatrist, who was superintendent of the institution to which Mrs. Christofferson had been committed, stated that his memory was that Mrs. Christofferson was a manic-depressive, but that persons affected with that disease had normal periods when they are thoroughly competent to transact business. The evidence of these witnesses, who had known the testatrix for a considerable length of time before affixing their signatures to the will, is entitled to a great deal of weight.
Mr. K.E. Wenger, who was trust officer of the United States National Bank of Salem at the time that bank was appointed guardian of the estate of Mrs. Christofferson, testified that he became acquainted with her in the spring of 1931 and that he had had "several conferences with her about guardianship affairs, estate property, and her needs and so on" and that her conduct was normal, "and I had no reason to *Page 86
question her sanity or her ability to handle her ordinary requirements." Mr. David Eyre, an officer of the bank with which Mrs. Christofferson did business, stated that he had known her since 1912 and had business with her after her husband died and prior to the appointment of a guardian; that he had no opinion as to her mental sanity "during that period"; that he thought she was competent to conduct her business; and that when she presented checks he cashed them.
Burns Christofferson, one of the proponents, was born, and has always resided, on the 20-acre tract. He is the youngest child and was farming the home place at the time his father died in September, 1930. He testified that upon his mother's return from the hospital in 1926, and again in 1930, she was very happy and not depressed or melancholy, and that in his opinion she was sane in March, 1931. Burns was married sometime in October, 1930, and apparently his mother was living with him when she executed her will.
Gerald Christofferson, the other proponent, was born in 1905 and did not leave the home place until 1929. In March, 1931, he was operating a store at Chemawa, and on the day of the execution of the will he brought his mother to Salem, as he had frequently done. He did not know anything about the execution of the will until a year or two thereafter. He had talked to his mother at various times about having a guardian of her estate appointed, but stated that he had not advised her to do so. It was his opinion that his mother was sane and competent to make a will on the date the will in question was executed.
Other witnesses who testified for proponents are the following: William D. Greig, who had known the testratrix 39 years and who, during most of that time, lived on a tract of land adjoining that owned by her, *Page 87
stated that she was happy part of the time and sometimes a little bit melancholy, but that he thought she was sane on the 26th of March, 1931. C.E. Andresen, who had known the testatrix 25 or 30 years and had lived on a farm about a half a mile from her residence and who had visited the Christoffersons "several times a week at times", was of the opinion that she was sane in March, 1931. This opinion, he stated, was based upon "just being around as much as I was. I never seen anything out of the way." He testified that he had never seen her when she was unhappy or "abnormally depressed". D.E. Janzen first became acquainted with Mrs. Christofferson in March, 1930, at which time he was living about a quarter of a mile from her place. He visited Mrs. Christofferson a couple of times during the summer of 1930 and she visited at his home three or four times that same summer. He stated that he thought "she was mentally all right", that from what he "knew of her she was always happy and satisfied" and at times would joke with him. Thomas R. Sim testified that he had known Mrs. Christofferson since 1910 and had visited at her home many times, that in 1931 or 1932 he had borrowed $150 from her which later had been repaid. He did not see her in March, 1931, but saw her many times before and after that date. He stated that prior to his business dealing with her in 1931 he had visited at her home many times and "lots of times" he saw her "happy and joking". It was his opinion that she was sane at the time he had the business dealing with her. Don H. Wall, Bishop of the Latter Day Saints Church, testified that he came to Salem in December, 1937; that Mrs. Christofferson attended his church; that he had occasion to talk with her many times, and had visited at her home. He stated that if there was "any *Page 88
thing wrong with her I never discovered it"; and that she "was just an ordinary nice, elderly lady. I always enjoyed talking with her."
Melvin Gruenfelder was called as a witness by the contestants. He had lived about three miles from Mrs. Christofferson's home for 25 years, and had been acquainted with her for about 20 years. He farmed the Christofferson place in 1921 and 1922, and had seen and talked to her about a week before her death. Asked about her sanity at that time he said that "she appeared to be all right. I talked to her. She knew me and asked how my mother was, so she couldn't have been insane; she knew everybody. Q. Was she sane all the times, as far as you know, then? A. She might have spells like anyone else, but you wouldn't call them insane. If she was, she didn't show it, is my notion."
We now refer to the testimony of contestants' other witnesses. Mrs. Genevieve Dunning, who is the eldest child and only daughter of the decedent, has not lived in Oregon since about 1920, and had seen her mother only about once a year since that time. She testified that she did not know where she (Mrs. Dunning) was living in 1931; that she attended her father's funeral in September, 1930, at which time her mother recognized her and the other children; and that she thought her mother was insane then and in 1931. Her husband, Guy E. Dunning, was at the time he testified a practicing attorney living in Seattle, Washington. He saw Mrs. Christofferson in 1919 and thought that she was at that time mentally unbalanced. He gave as the reason for his opinion that she had "fits of depression and fits of — not being fully cognizant of what was going on. She used to — if I were alone in the living room she would quite frequently come up to me and whisper something — oh, just didn't amount to anything *Page 89
at all." He did not remember the times he had seen her between 1919 and 1930 but was of the opinion that he had seen her several times during that period. He thought he saw her in 1931 and again in 1932 or 1933. He stated, as his opinion, that she was also insane in 1931 and gave as the reason for this opinion that she lacked understanding "of matters or of the business matters, financial matters, that we talked over", and that she did not speak coherently and would become depressed at times. Both Mr. and Mrs. Dunning were very indefinite concerning when they had seen the testatrix and what actually occurred when they visited her.
Lauren Christofferson left home in 1917 and enlisted in the navy. On his discharge from service in 1919 he moved to Eugene. He visited his parents "very little" thereafter. He saw his mother at his father's funeral. He stated that he did not think his mother's mind was sound in March, 1931." This opinion was based upon the fact that she had been committed to the Oregon State Hospital several times and because "she was declared incompetent and had a guardian to take care of her funds." He testified that his mother always recognized her children when she saw them and that his first child was born in her home where he had sent his wife to be cared for by his mother.
Contestant George Christofferson did not testify because of ill health. His wife Harriett, however, was a witness. She testified that she married George in 1919, that she became acquainted with Mrs. Christofferson in 1917, and that she thought she was insane at that time because she cried so much. She saw her mother-in-law often before Mr. Christofferson's death. Burns Christofferson was married about three weeks *Page 90
after his father's death and because George and his wife were not invited to his wedding, they did not see her very often thereafter until in 1937. She stated that she thought her mother-in-law was insane in 1937, and that her condition was the same then as it was in 1917. "Some times", the witness stated, "she was pretty nice and seems like she would be nice to people when she was shopping. She was good to the clerks", and "would at times appear quite normal before these clerks and so forth". She also testified that Mrs. Christofferson always recognized her children and knew what property she had.
Royal Christofferson lived on the farm until he was married in 1925. He has lived in Eugene since 1935. From 1933, for two or three years, his mother lived with him in Salem. He thought she was insane at that time. While she was living with him "she was not violently insane, but I would say a form of insanity." He also thought she was insane in 1931. His opinion is based upon the fact that she was incompetent to transact business. "She didn't know how to do anything she had to do. We had to do it for her and she wouldn't go places alone and would sit around and beg us to take her places and never lift a hand to do anything." He never saw his mother when she did not recognize her children and when she did not have a general idea about her property. Royal's wife, Evelyn, was also a witness for contestants. She became acquainted with Mrs. Christofferson in 1923, at which time she thought she was insane. She testified that Mrs. Christofferson was always depressed and never happy and talked mostly of the past. The first time she saw her "actually have a spell [of crying] was about 1926." She thought that she saw her some time in March, 1931, and that she was then insane. This *Page 91
opinion was based upon the fact that she was always depressed. She stated that her mother-in-law at all times knew her children and, as far as the witness knew, she knew what property she had.
Andrew Zahara testified that he lived about three-quarters of a mile from the Christofferson home and that between 1920 and 1925 he visited them many times and that during that period he was of the opinion that she was insane for the reason that she did not talk coherently. Mrs. Lola Longmire, who lived in Walla Walla, Washington, and was the sister-in-law of Mrs. Royal Christofferson, testified that she was a registered nurse and had, with Mrs. Royal Christofferson, visited the deceased in September, 1930. The witness stated that she was a "very talkative type of person to start with and cried most of the time I was talking with her." She thought that Mrs. Christofferson was insane at that time. She stated that she saw her again in January and February, 1931, and that her condition was then worse. "I didn't think she should be around Evelyn's children alone; alone with Evelyn's children. That is my personal opinion and I was quite — just trying very hard to convince them that she shouldn't leave her alone with the children."
Dr. Benjamin F. Williams was the only other witness called by the contestants. He stated that he had practiced medicine since 1901 and had specialized in psychiatry for the past 25 years, and was then, and had been for the past seven years, psychiatrist at the Oregon State Hospital. He had never seen Mrs. Christofferson. He was unable to diagnose her case from the hospital records. Based upon those records and upon the assumption that "she no longer was happy and sang and no longer evidenced any sense of humor and was given to depression and weeping and when *Page 92
she was not in the hospital at various periods of time" he was of the opinion that she had not fully recovered from her condition as a manic-depressive. On cross-examination Dr. Williams gave the following testimony:
"Q. Doctor, am I correct in assuming from your testimony that there are definitely periods of normalcy where there is a diagnosis of manic-depressive? A. Yes, sir.
"Q. And that the only times in which the person so diagnosed is affected in their judgment is in the manic phase or the depressive manic phase? A. Or in the interim when either have not cleared.
"Q. And during the normal period their judgment would not be affected? A. If they were entirely cleared.
"Q. But there are such periods? A. There may be such periods. I would not like to say they are or they are not always.
"Q. Such periods definitely exist? Periods of normalcy? A. Yes."
Dr. Williams answered the following question propounded to him by the court in the affirmative: "Then a person who recognizes her own heirs, knows who they are and their relationship to her, knows her property, she still may be insane?" We do not find any statement by Dr. Williams, as asserted by contestants, that Mrs. Christofferson was, in his opinion, insane on March 26, 1931.
At the time the will was executed Mrs. Christofferson considered the 20-acre tract of the value of about $3500 and placed the value of the rest of her property at $4800. These values are taken from the petition for appointment of a guardian. Her two youngest children, Gerald and Burns, remained at home long after the other children had left. They did much to help their parents when they needed assistance. Burns *Page 93
has always lived on this acreage. To him was devised the ten acres on which the buildings were located. Under these circumstances we see nothing unnatural in the way the testratrix divided her property.
The order appointing the guardian of Mrs. Christofferson's estate was not made until several days after the execution of the will. It contains the following:
"* * * And that because of petitioner's age and possibility of such physical and mental sickness recurring, it is to the best interests of said petitioner's estate, and to the heirs-at-law of said petitioner, that a suitable and proper guardian be appointed to take charge of and manage petitioner's estate. Petitioner personally petitions for this guardianship to avoid, if such a thing is possible, any difficulties or controversies which might arise between her children relative to the management of this property; such a controversy being imminent at this time, and this proceeding is instituted to stop such controversy, and to prevent any further controversy concerning the management of said estate."
There is nothing contained in the petition or the order appointing the guardian which would indicate that a guardian was being appointed because of the then insanity of the ward. This is an important distinction. Such an appointment differs materially from an appointment on account of insanity. In re Southman'sEstate, 178 Or. 462, 480, 168 P.2d 572.
Dr. Williams' testimony has been given careful consideration. Predicated, as it is, upon a hypothetical question based almost exclusively on the observations and testimony of interested, non-expert witnesses, it is of slight probative value. In re Linville's Estate, 137 Or. 145, 300 P. 505; In reShanks' Estate, supra. *Page 94
See also McGreal v. Culhane, 172 Or. 337, 141 P.2d 828; Inre Davis' Estate, supra.
We have only the typewritten record here. On the other hand, the trial judge, faced by the same issues, heard spoken the words we now read. He observed the conduct and expressions of the litigants and of the other witnesses, whereas we can not make an informed, independent conjecture as to such conduct or expressions. From the living record he found the factual issues in favor of the validity of the will. There is nothing in the record sufficient to convince us that, if we had seen the witnesses and heard the evidence, we would not have reached the same conclusion. Much less is there anything in it that convinces us that, not having seen or heard it made, we are justified in reversing his findings which were based upon more than can be before us.
We are of the opinion that Mrs. Christofferson had testamentary capacity to execute the will here in question and that such will is valid. In re Walther's Estate, 177 Or. 382,163 P.2d 285; In re Johnson's Estate, 162 Or. 97, 130,91 P.2d 330.
We have carefully examined the contention made by the contestants that the will was the result of undue influence and coercion by Gerald and Burns Christofferson. After viewing the entire record we find that this contention is without merit.
The decree appealed from is affirmed. *Page 95
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Matter of Sean P. (Brandy P.) (2017 NY Slip Op 08951)
Matter of Sean P. (Brandy P.)
2017 NY Slip Op 08951
Decided on December 22, 2017
Appellate Division, Fourth 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 on December 22, 2017
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND CURRAN, JJ.
1184 CAF 16-01308
[*1]IN THE MATTER OF SEAN P. ONONDAGA COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, PETITIONER-RESPONDENT; BRANDY P., RESPONDENT-APPELLANT, AND SEAN P., RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (DANIELLE K. BLACKABY OF COUNSEL), FOR RESPONDENT-APPELLANT.
ROBERT A. DURR, COUNTY ATTORNEY, SYRACUSE (MAGGIE SEIKALY OF COUNSEL), FOR PETITIONER-RESPONDENT.
LAURA ESTELA CARDONA, ATTORNEY FOR THE CHILD, SYRACUSE.
Appeal from an order of the Family Court, Onondaga County (Michael L. Hanuszczak, J.), entered June 7, 2016 in a proceeding pursuant to Family Court Act article 10. The order, among other things, adjudged that respondents had neglected the subject child.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to article 10 of the Family Court Act, respondent mother appeals from an order in which Family Court determined that she neglected the subject child. In reviewing the propriety of the order, we note that petitioner's burden was to "demonstrate by a preponderance of the evidence first, that [the] child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and second, that the actual or threatened harm to the child is a consequence of the failure of the parent . . . to exercise a minimum degree of care in providing the child with proper supervision or guardianship' " (Matter of Ilona H. [Elton H.], 93 AD3d 1165, 1166 [4th Dept 2012], quoting Nicholson v Scoppetta, 3 NY3d 357, 368 [2004]; see §§ 1012 [f] [i] [B]; 1046 [b] [i]). We further note that the court's "findings of fact are accorded deference and will not be disturbed unless they lack a sound and substantial basis in the record" (Matter of Kaleb U. [Heather V.—Ryan U.], 77 AD3d 1097, 1098 [3d Dept 2010]; see Matter of Arianna M. [Brian M.], 105 AD3d 1401, 1401 [4th Dept 2013], lv denied 21 NY3d 862 [2013]).
We conclude that there is a sound and substantial basis in the record supporting the court's determination that petitioner met its burden of establishing the mother's neglect of the child, i.e., that "the child was in imminent danger of impairment as a result of [the mother's] failure to exercise a minimum degree of care" (Matter of Paul U., 12 AD3d 969, 971 [3d Dept 2004]; see Matter of Claudina E.P. [Stephanie M.], 91 AD3d 1324, 1324 [4th Dept 2012]; see generally Nicholson, 3 NY3d at 368-370). The evidence supporting the court's determination includes the testimony and notes of petitioner's caseworker, as well as neonatal hospital records, which outline the mother's difficulties in caring for the child during the first four days of his life.
We reject the mother's contention that the finding of neglect was based solely on her mental illness. " While evidence of mental illness, alone, does not support a finding of neglect, such evidence may be part of a neglect determination when the proof further demonstrates that a respondent's condition creates an imminent risk of physical, mental or emotional harm to a child' [*2]" (Matter of Anthony TT. [Philip TT.], 80 AD3d 901, 902 [3d Dept 2011], lv denied 17 NY3d 704 [2011]; see generally Matter of Joseph MM. [Clifford MM.], 91 AD3d 1077, 1079 [3d Dept 2012], lv denied 18 NY3d 809 [2012]). Petitioner presented testimony and documentary evidence establishing that the mother's mental illness and intellectual disabilities rendered her unable to feed the child properly or to support the child's head, even while under hospital supervision. Thus, there was a sound and substantial basis supporting the court's determination that the child would be harmed if the mother were allowed to control his feeding schedule or to hold the child unsupervised.
Entered: December 22, 2017
Mark W. Bennett
Clerk of the Court
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The opinion of the court was delivered by
Upon examination of the record filed in this case, we find that counsel have stipulated that the *Page 128
same may be taked upon the record without briefs. It being ascertained that the questions involved are identical with those decided in Woodruff v. Wallace, 3 Okla. 855, the judgment of the lower court is affirmed upon the authority of that case.
All the Justices concurring.
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Argued October 3, 1928.
The court below on an affidavit of defense in the nature of a demurrer to plaintiff's statement held that he could not recover a balance of salary which he claimed from the partnership of which he had been a member; from its decision he has appealed.
Plaintiff and the three defendants entered into an agreement of partnership, wherein it was provided that each should receive for his services an annual salary therein fixed which should be considered expenses of the partnership. At the end of three years and a half plaintiff sold his interest to the other three members in consideration of $20,000 and the payment by them, as continuers of the business, of all the firm's debts. Plaintiff's salary had been fixed at $6,000 a year; he, however, had not received this amount but had drawn only $50 each week so long as he remained a member. After retiring *Page 418
from the firm and after receiving the full cash consideration he had stipulated for in the written agreement terminating the partnership and selling his interest therein to the others, he set up a claim for the unpaid part of his salary amounting to $11,900, with interest, and brought this action of assumpsit against his former associates to recover it from them.
Defendants in their affidavit by way of demurrer and in their argument before us put forth two reasons forbidding a recovery. First, that an action of assumpsit will not lie between partners; second, that a conclusive legal presumption arises that plaintiff's claim was included in the consideration paid for his interest in the firm. It will not be necessary to consider the first reason, to which we do not deny merit, because the second is controlling against appellant. In his statement of claim he does not aver that his claim for wages was excluded from the consideration in the agreement of sale of his interest, on the contrary he avers that he "sold his interest," and thereby necessarily meant all interest which he had, to the three defendants for the consideration named. The law casts a mantle of broad equities about partnership relations and dealings inter se. Plaintiff could not agree to sell all his interest to his copartners and keep up his sleeve such a claim as he now brings forth, and thereafter be permitted successfully to assert it. Presumptively, when he sold all his interest to his associates, any claim which he might have asserted against them was included in the consideration which he received: Beaumont v. Sharpless, 45 Pa. Super. 575. As was said in that case, quoting from an Indiana decision: "It will be presumed that the account of the retiring member of a firm was adjusted in ascertaining the value of his interest and that the value was increased or diminished in proportion as he was found to be the debtor or creditor of the firm, if nothing be shown to the contrary." To the same effect is Farnsworth v. Whitney, 74 Me. 370: "It is impossible to believe that the *Page 419
one would pay or the other receive the sum agreed upon unless all existing claims between them were to be thereby adjusted and settled." See also 21 A.L.R. 112. Plaintiff cites to us the cases of Beale v. Jennings, 129 Pa. 619, and Draucker v. Arick, 161 Pa. 357, in support of his contention that no presumption arose that plaintiff's claim was included in the consideration paid him for his interest in the partnership. An examination of these cases will show that the point now before us was not raised or considered in either of the two short Per Curiam opinions which dispose of those appeals, and we find no necessary implication in the cases that a partner, after a sale of his interest, may recover for a claim such as here asserted; if such implication would arise, to that extent the decisions in question would have to be overruled.
The judgment is affirmed.
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I think that in a proper case the conclusions of the Master were approximately correct, at least relief along that line would be appropriate, but I see no reason for discussing this matter. The case made by the bill was one to declare a forfeiture under the contract and declare it to be discharged and cancelled and to invalidate certain other deeds. The relief granted was inappropriate to the case made in the bill.
BROWN, J., concurs.
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Appeal from judgment quieting the title of plaintiff to real property situate in Alameda County, California. Before attempting to state the facts of this case, a review will be made of prior litigation between these parties involving the property in question.
Frank E. Faria and Adeline Faria were married in 1912, defendants Harold A. and Philip E. Faria being the minor children of that marriage. In 1915 Mr. and Mrs. Faria purchased a ranch; in 1922 Mrs. Faria selected and impressed it with a homestead. In 1923 Mr. Faria was in an automobile collision and he, with others, was sued for $50,000 damages resulting from the death of one of the parties due to said accident. Some five months later, to wit, on April 4, 1924, he executed to his wife a gift deed to the ranch, which deed was immediately placed of record. Mrs. Faria thereafter instituted divorce proceedings against him and in July, 1926, she was granted an interlocutory decree of divorce upon the ground of extreme cruelty. In October, 1926, by deed of gift, she conveyed the said real property to the two minor children, reserving to herself a life estate therein.
In February, 1927, action No. 93935 was brought against Mrs. Faria, Mr. Faria and the two children by one Brandon (this plaintiff), who alleged that on February 5, 1927, a money judgment for $432.76 had been entered in favor of his assignor and against Mr. Faria; that execution had issued thereon and had been returned wholly unsatisfied; that said deed of gift of the ranch property was without consideration and made with the intent and purpose to hinder, delay and defraud the creditors of Mr. Faria, wherefore he prayed that *Page 484
the deed be declared void. Mr. Faria defaulted, became a witness for Brandon and testified that he had conveyed the property to his wife so that it would not be lost to them as a result of the suit growing out of said automobile collision. The wife and children answered denying Mr. Faria's insolvency and the alleged fraudulent purpose of the deed. The court, however, found in accordance with the allegations of the complaint and entered judgment in favor of Brandon for the sum prayed for. Mrs. Faria had previously deposited this amount in court and the judgment was therefore satisfied on June 23, 1927.
About a week prior to said satisfaction of judgment, to wit, on June 16, 1927, said Brandon had filed another suit, No. 96338, against Mr. Faria, alleging that there was due him as assignee of certain creditors of Mr. Faria, the sum of $2,829.53, interest and costs, growing out of the principal and interest due on a $300 promissory note executed to one Christian by Frank Faria on March 19, 1927; another promissory note for $1500 executed to said Christian by Frank Faria on February 4, 1927, and a balance of $560.78 due one Hirsch on an automobile sales contract executed by said Faria. Frank Faria defaulted and judgment was entered against him in the sum prayed for on June 28, 1927. On the same day execution was issued thereon and levied upon the said ranch property.
The said Brandon thereupon instituted execution proceedings wherein, after the appointment of three persons to appraise the property claimed as a homestead, an order was made confirming their report, setting apart to Mr. and Mrs. Faria a portion of the ranch as a homestead and permitting execution of said judgment upon the remainder. Mrs. Faria appealed from this order, alleging the said gift conveyance to her by her husband and her gift conveyance to the minor children, subject to a life estate in her. In passing upon this appeal it was held that the deed from Mr. Faria to his wife did not impair the homestead nor did the interlocutory decree of divorce or the final decree of divorce subsequently entered have that effect; that, however, as to the remainder of the property, the judgment-roll in said action 93935 contained a finding that the deed thereto from Mr. Faria to Mrs. Faria, was without consideration and made with the intent to delay, hinder and defraud the creditors of Mr. *Page 485
Faria; therefore, even assuming that the debt sought to be enforced was incurred after the execution of the said deed, nevertheless "the facts found above were prima facie evidence of an intent to defraud subsequent creditors (Hemenway v.Thaxter, 150 Cal. 737 [90 P. 116]), which fraud respondent (Brandon) as an assignee of a creditor could assert (Kemp v.Enemark, 194 Cal. 748 [230 P. 441])"; hence the order was affirmed. (Brandon v. Faria, 99 Cal. App. 594
[279 P. 192].)
Again, in an action by Mrs. Faria against Brandon, on appeal from an order denying her a preliminary injunction against sale by the sheriff of said property under the execution issued upon said $2,829.53 judgment, this court affirmed the order upon the following grounds: That Mrs. Faria had been secured in her homestead right; that the surplus only of the property was subjected to the payment of said judgment; that it had been duly adjudged that said deed from Mr. Faria to his wife was without consideration made when he was insolvent for the purpose of defrauding his creditors; that the deed to the minor children was without consideration and that it was uncontradicted that the execution sale had already taken place. (Faria v. Brandon,206 Cal. 730 [276 P. 106].)
This controversy was again before the District Court of Appeal, in an action by Mr. Faria against Mrs. Faria and the children, wherein a judgment had been entered setting aside the deed from Mr. Faria to Mrs. Faria and the deed from Mrs. Faria to the children. Mrs. Faria and the other defendants appealed contending that as it had been judicially determined that the husband's purpose in conveying the ranch to his wife was to defraud his creditors, he was precluded from seeking to recover it back and further contending that the evidence failed to prove that Mrs. Faria had unduly influenced her husband to make the deed to her. The court again reviewed the history of this controversy saying: "It thus appears that twice have the courts of appellate jurisdiction recognized the decision in Brandon v. Faria (No. 93935), as being a determination of the fact that the purpose of the gift deed . . . from Faria to his wife was to hinder, delay and defraud creditors. . . . If such was the purpose of the deed the law will not allow Faria to recover back the property he has fraudulently conveyed, *Page 486
for the rule in such case is that as soon as the fraudulent purpose of the conveyance is disclosed by the evidence, the trial court will leave the parties where it finds them. (12 Cal. Jur. 1026, and cases cited.)" The court then further held that the evidence was legally insufficient to establish, as against the wife, a case of undue influence or actionable fraud in favor of the husband and accordingly it reversed the judgment previously entered in his favor. (Faria v. Faria, 100 Cal. App. 177
[280 P. 187, 188].)
We now arrive at the present action, which was instituted on October 29, 1929, by said Brandon against Mr. and Mrs. Faria, the minor children and others, seeking to quiet the title to said property obtained by him from the sheriff by reason of his purchase at the execution sale in said action 96338. Defendant Frank Faria defaulted and all other defendants were dismissed except Mrs. Faria and the children, who answered, alleging that Mr. Faria, plaintiff Brandon, and the Christian above mentioned, had entered into a conspiracy to deprive them of the said property, all in the interest of Mr. Faria. They claimed that Mr. Faria had executed the said $1500 and $300 notes to Christian, an attorney, without any consideration other than legal services to be thereafter performed by him; that Christian had assigned the notes to Brandon and had also caused said Hirsch to assign his automobile contract claim to Brandon, thus increasing the demand against Mr. Faria, all in order to deprive defendants of the property, to permit Brandon to secure the $2,829.53 judgment in action 96338 and to bring this action and to permit Christian to act as attorney in all these matters, aided by Mr. Faria and looking toward his interests.
This cause came to trial. The judgment-rolls in actions 96338 and 93935 were admitted in evidence as well as the complaint andremittitur from the District Court of Appeal in action 96551 (Faria v. Faria, supra). Testimony was given by Christian, Hirsch and Mrs. Faria. The complaint and decision in action 96551 showed that Mr. Faria was there represented by Mr. Christian. Mr. Christian also admitted that he represented Mr. Faria in action 97440, wherein judgment for respondent Faria was affirmed by the District Court of Appeal on July 18, 1929 (Faria v.Bettencourt, 100 Cal. App. 49 [279 P. 679]). He further testified that *Page 487
during the fall of 1926, Mr. Faria consulted him many times regarding proposed litigation; that the two notes for $1500 and $300, respectively, were given him by Mr. Faria for legal services already rendered and to be thereafter rendered and that he knew at said time of the execution of said gift deed to Mrs. Faria, which was claimed to be fraudulent as to creditors. Mr. Hirsch testified that he had assigned his claim, which represented a renewal in 1924 of an indebtedness incurred by Mr. Faria in 1921 to plaintiff Brandon, but that he did not know of the said alleged fraudulent gift deed until informed of it by Mr. Christian after May 8, 1924; that at the time Mr. Faria purchased the automobile from him in 1921, he gave him credit for $300 or $400 on said contract in return for two horses; that in 1924 he took a new note for the unpaid balance then due; that he received no consideration for the assignment to Brandon; that the debt was never paid and he never got the car back, but one McCord finally took it from the ranch and gave it to Mr. Faria. Mrs. Faria testified that at the time said contract was made she had told Mr. Hirsch that it was her ranch and that she did not want the automobile; that, however, it was awarded to her by the judgment in the divorce action, but Mr. Hirsch told her that she could only keep it if she gave him $200; that she said she had no money and he finally took the car away from her.
The most that can be said of the testimony in favor of defendants is that it created a conflict in the evidence. This conflict the trial court resolved in favor of plaintiff Brandon. The court found that plaintiff was the owner in fee simple and entitled to possession of the property; that as a result of the execution sale in action 96338 and after expiration of the period of redemption, to wit, on August 1, 1929, he had acquired a deed to said property from the sheriff; that Mr. Faria had made said gift deed to his wife without consideration, at a time when he was insolvent and with the intent and purpose to hinder, delay and defraud his existing creditors, particularly Petersen Bros., to whom he owed $432.76, and also his future creditors, particularly this plaintiff. The court further found that the deed from the wife to the children was made without consideration and that these parties have no interest in the property. It also found to be untrue all the allegations with respect to the purported *Page 488
conspiracy to enable Mr. Faria to recover the said property. In accordance with these findings, judgment was entered for plaintiff, quieting his title to the property, and the defendants wife and children have appealed.
[1] The above statement of facts, although lengthy, practically disposes of this appeal. Not only does the evidence clearly support the findings in every respect but the several findings and judgments in the prior actions have effectually disposed of any issues which might be raised here. Appellants claim that the judgment in action 96338 did not make the gift deed to Mrs. Faria prima facie fraudulent as to subsequent creditors and that both Christian and Hirsch were subsequent and not existing creditors. We shall not discuss this subject again. (See the several pronouncements heretofore made and above reviewed; Faria v. Faria, 100 Cal. App. 177 [280 P. 187], and cases there cited; Brandon v. Faria, 99 Cal. App. 594
[279 P. 192]; Faria v. Brandon, 206 Cal. 730
[276 P. 106].)
The further contention of appellants is that the judgment here and the judgments in action No. 96338, which was predicated on assignment of the Christian and Hirsch debts to Brandon, were collusive and obtained in the interest of Frank Faria. Without passing upon the right of appellants, in this proceeding, to attack the judgments growing out of action No. 96338, we need only say that no convincing proof of collusion or conspiracy appears in the record before us. The evidence, although not without some conflict, nevertheless offers ample support for the findings and judgment of the court below and they will not be disturbed upon appeal.
The judgment is affirmed.
Curtis, J., Seawell, J., Shenk, J., Waste, C.J., and Tyler J.,pro tem., concurred.
Rehearing denied. *Page 489
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Case: 19-13985 Date Filed: 04/07/2020 Page: 1 of 2
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-13985
Non-Argument Calendar
________________________
D.C. Docket No. 3:05-cr-00104-HLA-MCR-1
UNITED STATES OF AMERICA,
Plaintiff -Appellee,
versus
JACETA ANYA STREETER,
a.k.a. Star,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(April 7, 2020)
Before WILSON, WILLIAM PRYOR, and JILL PRYOR, Circuit Judges.
PER CURIAM:
Gerald Scott Bettman, appointed counsel for Jaceta Anya Streeter in this
direct criminal appeal, has filed a motion to withdraw from further representation
Case: 19-13985 Date Filed: 04/07/2020 Page: 2 of 2
of Streeter, supported by a brief prepared under Anders v. California, 386 U.S. 738
(1967). Our independent review of the entire record reveals that counsel’s
assessment of the relative merit of the appeal is correct. Because independent
examination of the entire record reveals no arguable issues of merit, counsel’s
motion to withdraw is GRANTED, and Streeter’s revocation of supervised release
and sentence are AFFIRMED.
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Matter of Rudolph v Annucci (2017 NY Slip Op 09000)
Matter of Rudolph v Annucci
2017 NY Slip Op 09000
Decided on December 22, 2017
Appellate Division, Fourth 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 on December 22, 2017
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., CENTRA, DEJOSEPH, NEMOYER, AND WINSLOW, JJ.
1360 TP 17-00887
[*1]IN THE MATTER OF BASHAN RUDOLPH, PETITIONER,
vANTHONY ANNUCCI, ACTING COMMISSIONER, NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENT.
WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (ADAM W. KOCH OF COUNSEL), FOR PETITIONER.
ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (VICTOR PALADINO OF COUNSEL), FOR RESPONDENT.
Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Wyoming County [Michael M. Mohun, A.J.], entered May 15, 2017) to annul a determination of respondent. The determination found after a tier III hearing that petitioner had violated various inmate rules.
It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.
Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination, following a tier III disciplinary hearing, that he violated inmate rules 106.10 (7 NYCRR 270.2 [B] [7] [i] [refusal to obey direct order]) and 113.10 (7 NYCRR 270.2 [B] [14] [i] [weapon possession]). Contrary to petitioner's contention, the determination is supported by substantial evidence, including the misbehavior report and the testimony of the correction officer who wrote it (see Matter of Medina v Fischer, 137 AD3d 1584, 1585 [4th Dept 2016]; Matter of Spears v Fischer, 103 AD3d 1135, 1135-1136 [4th Dept 2013]; see generally People ex rel. Vega v Smith, 66 NY2d 130, 139-140 [1985]), notwithstanding that the videotape of the incident is inconclusive in certain respects (see generally Matter of Hutchinson v Annucci, 149 AD3d 1443, 1443 [3d Dept 2017]). The testimony of petitioner and the other inmates who testified at the hearing merely raised credibility issues that the Hearing Officer was entitled to resolve against petitioner (see Matter of Foster v Coughlin, 76 NY2d 964, 966 [1990]; Matter of Heath v Walker, 255 AD2d 1006, 1006 [4th Dept 1998]), as did the alleged inconsistencies in the testimony of the correction officer who witnessed the incident (see Matter of Headley v Annucci, 150 AD3d 1513, 1514 [3d Dept 2017]; see also Matter of Griffin v Goord, 266 AD2d 830, 830 [4th Dept 1999]).
Entered: December 22, 2017
Mark W. Bennett
Clerk of the Court
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In this case the plaintiff in error, Monroe Hasty, was indicted, tried and found guilty of murder in the first degree without recommendation to mercy of the Court and thereupon sentenced to death by electrocution. Upon writ of error to the judgment, the sole proposition of law advanced for argument in plaintiff in error's behalf is that the evidence was legally insufficient to support the jury's finding that the homicide was committed by the defendant with a premeditated design to effect the death of the person killed.
The evidence brought up in the bill of exceptions discloses that Mr. George Loucakis was at his store and filling station near Eldridge in Volusia County on the night of June 8, 1934; that his wife, Mrs. Helena Loucakis, was doing the usual work she did at night in connection with her husband's business, taking care of the books of the store and looking after the cash, which was her part of the job in which both were engaged in the operation of the *Page 271
store; between eleven thirty and twelve o'clock on the night of June 8th (which was Friday) Mr. Loucakis, as was his custom, went to bed, leaving his wife sitting at her desk doing some kind of work; suddenly Mrs. Loucakis called out to her husband, "George, I am shot," whereupon, her husband, being aroused from his sleep by his wife's call for help, ran to her assistance; Mrs. Loucakis died the next day after removal of a .25-caliber automatic pistol bullet from her body.
Investigations made by officers disclosed that Mrs. Loucakis had been shot by a pistol evidently fired from a point close to a screened window which commanded a view of the place where Mrs. Loucakis was sitting when wounded. There were powder burns around the bullet hole in the window screen that had been made by a small caliber weapon and there was found nearby a cigarette holder and package of cigarettes that had been dropped in the flight of the perpetrator of the shooting. Two and a half feet from the screened window was found a twenty-five caliber pistol shell that had been ejected from its weapon after being fired. In addition to this tracks led to and from the screened window from whence the shot came.
Sometime after daylight Monroe Hasty, the plaintiff in error, was arrested and charged with the crime. Between two mattresses was found a .25-caliber automatic pistol and the defendant himself identified as being his the cigarette holder and package of cigarettes found at the scene of the homicide.
In addition to a purported "confession" made in the Tampa jail and admitted in evidence, the defendant himself testified at the trial that he went to the home of Mr. and Mrs. Loucakis to steal chickens, that he carried the .25-caliber automatic pistol in his hand as he did so and that *Page 272
as he was closing the chicken house door, the pistol went off, whereupon the accused ran away and upon reaching his home, hid the gun between the mattresses just before going to bed. The chicken house from which point the defendant testified the pistol was "accidentally" discharged by him was shown to be at least 100 feet from the place where the ejected cartridge shell was found and at the same distance from the point where the powder burns were impressed on the punctured window screen. There was expert testimony to establish the fact that a .25-caliber automatic pistol does not make powder marks and eject a fired cartridge shell 100 feet from the point of discharge when the weapon is fired.
The conclusion we draw from the evidence as a whole (and such was evidently the conclusion drawn by the jury) is that the defendant, a negro boy (who had once worked for Mr. and Mrs. Loucakis), in the middle of the nighttime, while the man of the house was in bed and the wife sitting up alone and engaged in looking after her work, surreptitiously crept up to the screened window not far from where Mrs. Loucakis was sitting, and thereupon, pressing the muzzle of his menacing weapon up against, or near the meshed wire, took deliberate aim and fired with deadly accuracy the fatal shot which mortally wounded Mrs. Loucakis as she sat at her desk doing her accustomed work in her husband's place of business.*
The unlawful killing of a human being, when perpetrated *Page 273
trated from a premeditated design to effect the death of the person killed or any human being, or when committed in the perpetration of or in the attempt to perpetrate any arson, rape, robbery or burglary, is murder in the first degree and is punishable by death. Section 7137 C. G. L., 5035 R. G. S., Chapter 8470, Acts 1921, Laws of Florida.
In order that a person may be convicted of murder in the first degree, he must have acted from or in pursuance of a premeditated design to effect the death, as alleged in the indictment; proof of a mere intent to kill would not be sufficient. Such design must precede the killing by some appreciable space of time, but the time need not be long. It must be sufficient for some reflection or deliberation upon the matter, for choice to kill or not to kill, resulting in the formation of a definite purpose to kill. That such purpose was formed must be determined by the jury from all the circumstances of the case, but indication of it need not be given express utterance to be at the time of the killing, or at any other time, but may be inferred by the jury from all of the facts and circumstances of the case, though no expression of malice or of such premeditated design may ever have been given utterance to by the accused at any time, either before or after firing the fatal shot or inflicting the mortal wound. Roberson v. State, 45 Fla. 94, 34 So.2d Rep. 294; Barnhill v. State,56 Fla. 16, 48 So.2d Rep. 251.
The natural and necessary inference is that an inexcusable and cruel act, such as the act of an intruder in shooting to death an unarmed woman peacefully sitting in her husband's place of business late at night, attending to her own affairs and unaware of the presence of any menace to her safety from an intruder's nearby presence armed with a deadly weapon, is an act done in pursuance of a willful, wrongful and injurious purpose previously, though *Page 274
perhaps suddenly formed, and premeditated sufficiently to amount to a premeditated design to kill the person fired at, where it appears that in order for the intruder to fire the fatal shot it was necessary for the killer to so deliberately and accurately aim the weapon at the time of the shooting, that its bullet would reach its mark after being fired through a mesh window screen from the darkness into a lighted room where the victim was seated. See Holland v. State, 12 Fla. 117.
So whether the defendant in this case thought Mrs. Loucakis, who appeared to be alone because her husband had earlier that night gone to bed, would be an easy victim of an attempt at robbery or burglary, if she were shot while near the place in her husband's store that she usually checked up the day's cash, or whether the shot that was fired was so fired deliberately through an inexcusable impulse on defendant's part to kill, it is certain that proof of premeditated design to effect the death of Mrs. Loucakis is lawfully deducible from the circumstances of the shooting and its effect in bringing about the death of Mrs. Loucakis, the person shot at and thus slain.
The judgment is affirmed.
WHITFIELD, C. J., and BROWN, J., concur.
ELLIS, P. J., and TERRELL and BUFORD, J. J., concur in the opinion and judgment.
* A dying statement made by Mrs. Loucakis after she was shot and just before she died confirms the conclusion stated. Mrs. Loucakis' version of the shooting was as follows: "I went to close the living room and somebody shot me from in back the house. They must have been standing by the faucet. I saw the fire. Look if there's a hole in the screen. Geo. was asleep and didn't hear it. I had to call him several times."
ON PETITION FOR REHEARING.
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The petitioner, Wolf, as plaintiff, brought her bill to foreclose a purchase money chattel mortgage given her by Kenyon and Barlar upon: "* * * all the goods, chattels and personal property now in ____ and particularly described as follows: That certain Bar and restaurant, known as the `La Ciesta Bar' located at the corner of N.W. 27th Avenue and Ali Baba Avenue in the city of Opa Locka, State of Florida; together with the good will of said business and the use of the name; in addition thereto, all of the liquor, potato chips, pretzels and other similar merchandise used in the operation of the Bar."
Plaintiff's bill alleges that Kenyon and Barlar "* * * on or about September 30, 1948, sold said La Ciesta Bar and restaurant business to the defendant, Harry Barstow, and caused to be transferred to him all licenses incidental to said business and necessary for the operation thereof, and that at the time of said purchase and transfer the said defendant, Harry Barstow, knew and was informed of the plaintiff's mortgage lien on said business and that whatever interest the said defendant, Harry Barstow, has in said business and in all licenses incidental thereto and necessary in the operation thereof is subject, junior and inferior to the rights of the plaintiff under said mortgage lien."
And by her bill plaintiff prays:
"(a) That pending this suit the court appoint some discreet and suitable person *Page 690
as receiver of said mortgaged business and of the income therefrom with directions to continue the operation thereof and to account for the receipts and disbursements and to enjoin the defendant, Harry Barstow, from transferring or disposing or attempting to transfer or dispose of the business pending this litigation."
On November 16, 1948, the Chancellor, on an ex parte application, entered a temporary restraining order against the transfer of the business or liquor license; and on November 18, 1948, upon a hearing after notice, the Chancellor appointed receivers to operate the bar and restaurant and enjoined Harry Barstow from transferring the liquor license.
On December 2, 1948, on motion of the defendant, the Chancellor eliminated the liquor license from the force and effect of all injunctive orders, and it is this order which petitioner seeks to have quashed in this Court by certiorari.
The testimony was to the effect that when Wolf sold the business to Kenyon and Barlar the liquor inventory was about $1600; that when Barstow bought the business from Kenyon and Barlar the liquor inventory was less than $50 in value and that when the hearing for the appointment of the receiver was had the liquor stock was of a value less than $200.
Kenyon and Barlar testified that Barstow, at the time of the purchase by him, orally assumed and agreed to pay the Wolf mortgage. Barstow denies that he agreed to assume and pay the Wolf mortgage.
The mortgage does not encumber the liquor license and, since the mortgaged property is of such small value, it seems evident that the operation of the business by a receiver will be of no benefit, or at best of slight benefit, to the plaintiff, and might in fact prove a hazard to plaintiff. Furthermore, it is not clearly established that the defendant assumed the payment of plaintiff's mortgage, and we conclude that such was the conclusion of the Chancellor.
It has not been made to affirmatively appear that the Chancellor has erred; wherefore the petition for rehearing should be granted and the petition for certiorari denied and our previous ruling, under date of January 18, 1949, to the contrary annulled. *Page 691
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We concur in the judgment of reversal but are of the opinion that the evidence does not make a case of conversion. *Page 136
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\JS^U>^'[
TO: CLERK OF THE 2/2/2015
CRIMINAL COURT OF APPEALS
P O BOX 12308 CAPITAL STATION
AUSTIN, TEXAS 78711
RE: NEW LAWS TAKING AFFECT 9/2015 '.
DEAR CLERK/
PLEASE MAY I BE IMFORMED OF ANY NEW LAWS THAT ARE TAKING AFFECT SEPTfiMBER,
THANK YOU KINDLY FOR ANYi AND ALL ASSISTANCE IN THIS MATTER.
SINCERLY,
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PAIGE LOUIS BENNER 1278531
2101 FM 369 NTH ALLRED
IOWA PARK, TEXAS
S
76367-6568
o*r"
Afe@IAcost®, Clerk
cc: personal file
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RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0108p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JOSEPH THOMAS REINER, ┐
Petitioner-Appellant, │
│
> No. 18-1413
v. │
│
│
JEFFREY WOODS, Warden, │
Respondent-Appellee. │
┘
Appeal from the United States District Court
for the Western District of Michigan at Marquette.
No. 2:15-cv-00125—Robert J. Jonker, District Judge.
Argued: March 10, 2020
Decided and Filed: April 7, 2020
Before: CLAY, ROGERS, and GRIFFIN, Circuit Judges.
_________________
COUNSEL
ARGUED: Matthew C. Tymann, WILMER CUTLER PICKERING HALE AND DORR LLP,
Los Angeles, California, for Appellant. Jared D. Schultz, OFFICE OF THE MICHIGAN
ATTORNEY GENERAL, Lansing, Michigan, for Appellee. ON BRIEF: Matthew C. Tymann,
WILMER CUTLER PICKERING HALE AND DORR LLP, Los Angeles, California, for
Appellant. Jared D. Schultz, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing,
Michigan, for Appellee.
No. 18-1413 Reiner v. Woods Page 2
_________________
OPINION
_________________
GRIFFIN, Circuit Judge.
In this habeas case brought under 28 U.S.C. § 2254, both parties agree that the admission
of testimonial hearsay statements during petitioner Joseph Reiner’s murder trial in Michigan
state court violated his Sixth Amendment right to confront his accusers (because the declarant
was never available for cross-examination). The Michigan Court of Appeals made that same
determination on direct review. The issue on appeal is whether that error was harmless.
A review of the evidence presented at Reiner’s trial paints the picture of a circumstantial
case lacking physical evidence or eyewitness testimony placing Reiner at the crime scene. The
statements that gave rise to the Sixth Amendment violation here served as the linchpin of the
government’s case, connecting Reiner to the fruits of the crime in a way no other evidence,
testimonial or physical, could. Without those statements, the prosecution’s case becomes
significantly weaker, such that “grave doubt” exists as to whether their admission had a
“substantial and injurious effect or influence in determining the jury’s verdict.” O’Neal v.
McAninch, 513 U.S. 432, 436 (1995) (citation omitted). We therefore reverse the district court’s
denial of Reiner’s § 2254 petition and remand for further proceedings.
I.
Reiner’s “convictions arise from the February 23, 2011[ ] home invasion of 49199
Fairchild Road in Macomb County, where 69-year-old Joanne Eisenhardt lived.” People v.
Reiner, No. 313854, 2014 WL 1515371, at *1 (Mich. Ct. App. Apr. 17, 2014) (per curiam).1
Eisenhardt was stabbed in the neck with two knives and jewelry was taken from the house,
including a ring from Eisenhardt’s finger. Eisenhardt survived the stabbing, but she “suffered
declining health after the incident and died seven months later.” Id. Police officers in New York
apprehended Reiner on February 26, 2011, on suspicion of driving a stolen vehicle stemming
1
In a § 2254 proceeding, a state court’s factual determinations are “presumed to be correct.” 28 U.S.C.
§ 2254(e).
No. 18-1413 Reiner v. Woods Page 3
from a separate incident. He was returned to Michigan to stand trial for the home invasion and
stabbing.
At trial, the prosecution sought to introduce several statements of a pawn shop owner
named Hadrian Lewandowski. The Michigan Court of Appeals described his statements thus:
[A]fter [Detective] Ernatt visited the Gold Shop on February 24, 2011,
Lewandowski called him and left a voicemail message. In the message,
Lewandowski identified defendant as a person who had been in the Gold Shop the
previous day. . . .
After being shown a photograph of defendant, Lewandowski told Ernatt
that defendant had been in the Gold Shop on the day of the home invasion. He
further said that defendant had thrown “some items” on the counter and asked if
they were worth anything. In addition, after Ernatt looked in the tin can where
Lewandowski kept the scrap and costume jewelry and saw a ring that matched a
description given to him as one that was stolen from Eisenhardt, and which was
subsequently identified by Eisenhardt’s granddaughter as belonging to Eisenhardt,
Lewandowski said that it was possible that defendant had brought in the ring.
Lewandowski told [Sergeant] Willis that defendant, on his last visit to the Gold
Shop, which was between 11:00 a.m. and 12:00 p.m., had pawned the ring and a
necklace with a magnifying glass. Then, after [Detective] Hanna followed
Lewandowski to his house to retrieve the necklace, Lewandowski told Hanna,
when he handed over the necklace, that it was the necklace that defendant had
pawned.
Id. at *4. Lewandowski died before trial, however, and Reiner never had an opportunity to
cross-examine him. Id. at *3 n.2, *4. The prosecutor sought to introduce Lewandowski’s
statements during the testimony of the law enforcement officers he had spoken to. Reiner
objected, arguing that these statements would violate his Sixth Amendment right to confront his
accusers. The trial court overruled the objection and held “that Lewandowski’s statements,
although testimonial, were not barred by the Confrontation Clause because they would be used to
explain why the police acted as they did and how they came to investigate defendant.” Id. at *3.
Lewandowski’s statements played a prominent role in the prosecution’s case. The
prosecution did not present any physical evidence (like fingerprints or DNA) placing Reiner at
the crime scene, and eyewitness testimony only placed him in the general area at around the time
of the home invasion and stabbing. During opening statements and closing arguments, the
prosecutor argued several times that Reiner’s possession of Eisenhardt’s jewelry at the Gold
No. 18-1413 Reiner v. Woods Page 4
Shop provided strong evidence that he had attacked her earlier that day. And Lewandowski’s
statements—which the prosecutor also discussed repeatedly—provided the strongest (if not the
only) evidence that Reiner possessed Eisenhardt’s jewelry.
The jury convicted Reiner “of assault with intent to murder, MCL 750.83; first-degree
home invasion, MCL 750.110a(2); and felony murder, MCL 750.316(1)(b).” Id. at *1. The trial
court sentenced him “to concurrent prison terms of 450 to 720 months for the assault with intent
to murder conviction, 150 to 240 months for the home invasion conviction, and life
imprisonment for the murder conviction.” Id.
The Michigan Court of Appeals affirmed Reiner’s convictions on direct review, rejecting
Reiner’s argument that the admission of Lewandowski’s statements warranted a new trial. The
court first addressed Lewandowski’s statement to Detective Ernatt in a voicemail message. “In
the message, Lewandowski identified [Reiner] as a person who had been in the Gold Shop the
previous day.” Id. at *4. The court held that this statement’s admission did not violate the
Confrontation Clause because “it was offered as background evidence to explain why Ernatt
acted as he did in returning to the Gold Shop on February 25, 2011, to conduct further
investigation.” Id. Reiner does not challenge the introduction of this statement.
As for the remainder of Lewandowski’s statements to the police, the court held that they
were inadmissible hearsay:
The statements, which show that defendant was in the Gold Shop on the day of
the home invasion and that he pawned jewelry, which may have or did include the
ring that belonged to Eisenhardt, were strong circumstantial evidence that
defendant was the perpetrator of the home invasion. The statements went to the
very heart of the prosecutor’s case and therefore, were used for the truth of the
matter asserted.
Id. The court also held that the statements were testimonial and noted that Reiner had no
opportunity to cross-examine Lewandowski. Id. Thus, “the admission of Lewandowski’s
statements on February 25, 2011, to Ernatt, Willis, and Hanna violated [Reiner’s] right of
confrontation.” Id.
No. 18-1413 Reiner v. Woods Page 5
But the court also held that the trial court’s error was harmless beyond a reasonable doubt
because “[t]here was evidence other than Lewandowski’s statements that connected defendant to
the Gold Shop on February 23, 2011, the day of the home invasion.” Id. at *5. Specifically, the
court cited the following evidence presented at trial:
• The signature on a receipt (or “purchase order”) from the Gold Shop dated
February 23, 2011, which “[a]s argued by the prosecutor at trial,” matched
the signatures from two previous Gold Shop receipts bearing Reiner’s
name and thumbprint. Id.
• Eyewitness Allen Pauli’s testimony “that he saw defendant walking north
on Fairchild Road at approximately 9:50 a.m. on February 23, 2011. Pauli
thought it was unusual for defendant to be walking on Fairchild Road
because the area was remote and it was very cold outside.” Id.
• Eyewitness Thomas Kosciolek’s testimony “that he saw defendant
walking east on 22 Mile Road” and gave him a ride to a bus stop, that
“defendant was sweating terribly and, once in Kosciolek’s vehicle, he
never took off his hat and gloves and never looked at Kosciolek,” and that
“Defendant told Kosciolek that he had been visiting a girl in a nearby
trailer park, but [Detective] Stevens never located anybody in the trailer
park who knew defendant.” Id.
• Reiner’s statement to police in New York, following his arrest for stealing
a car in a separate incident, that there was “some big shit” in Michigan
that he would deal with when he returned there. Id.
Based on this evidence, the court concluded that “it is clear beyond a reasonable doubt that a
rational jury would have found defendant guilty absent the trial court’s error in admitting
Lewandowski’s February 25, 2011 statements to Ernatt, Willis, and Hanna.” Id.
After the Michigan Supreme Court denied Reiner’s pro se application for leave to appeal,
People v. Reiner, 856 N.W.2d 38 (Mich. 2014) (order), Reiner filed a pro se § 2254 petition in
the district court, raising four grounds for relief. The magistrate judge issued a report and
recommendation recommending that the court dismiss the petition and deny any subsequent
application for a certificate of appealability. Reiner v. Woods, No. 2:15-CV-125, 2017 WL
8222209, at *8 (W.D. Mich. Dec. 13, 2017) (report and recommendation). After Reiner filed
timely objections, the district court adopted the report and recommendation and dismissed the
petition, but granted a certificate of appealability as to Ground III, which argued that “[t]he Court
denied Petitioner his 6th Amendment right of confrontation and his right to due process by
No. 18-1413 Reiner v. Woods Page 6
erroneously allowing into evidence hearsay statements by pawn broker Hadrian Lewandowski,
who was deceased.” Reiner v. Woods, No. 2:15-CV-125, 2018 WL 1305784, at *2–4 (W.D.
Mich. Mar. 13, 2018).
Reiner timely appealed, filed a pro se brief in this court, and moved for the appointment
of counsel. We granted that motion and a second round of briefing followed.
II.
“This Court reviews de novo the legal conclusions involved in the district court’s
decision to deny the writ under § 2254, and reviews for clear error its findings of fact.”
Palazzolo v. Gorcyca, 244 F.3d 512, 515 (6th Cir. 2001).
III.
The Confrontation Clause of the Sixth Amendment provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against
him.” U.S. Const. amend. VI. “The main and essential purpose of confrontation is to secure for
the opponent the opportunity of cross-examination.” Davis v. Alaska, 415 U.S. 308, 315–16
(1974) (citation omitted). The Confrontation Clause bars “admission of testimonial statements
of a witness who did not appear at trial unless he was unavailable to testify, and the defendant
had had a prior opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36, 53–
54 (2004). It operates independently from the hearsay rule. Id. at 50–51; see Fed. R. Evid. 801.
Statements are “testimonial” “when the circumstances objectively indicate . . . that the primary
purpose of the interrogation is to establish or prove past events potentially relevant to later
criminal prosecution,” rather than to enable the assistance of law enforcement to respond to an
ongoing emergency. Davis v. Washington, 547 U.S. 813, 822 (2006) (footnote omitted).
Here, the Michigan Court of Appeals found that most of Lewandowski’s statements to
law enforcement were testimonial hearsay. Reiner, 2014 WL 1515371, at *4. And because
Lewandowski died a few months after giving them, he was unavailable to testify at trial and
Reiner never had an opportunity to cross-examine him. Id. The court therefore held that the
admission of those statements violated the Confrontation Clause. Id. And the state rightly
No. 18-1413 Reiner v. Woods Page 7
concedes in its brief that Reiner’s “rights were violated when statements from the jewelry dealer
were admitted into evidence.”
IV.
Confrontation Clause violations do not require automatic reversal, and are instead subject
to harmless-error analysis. Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986). “[B]efore a
federal constitutional error can be held harmless, the court must be able to declare a belief that it
was harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24 (1967).
Under Chapman, the government bears the burden of establishing that a constitutional error was
harmless. Arizona v. Fulminante, 499 U.S. 279, 296 (1991).
On collateral review, however, “the test is different.” Davis v. Ayala, 135 S. Ct. 2187,
2197 (2015). Habeas petitioners must have suffered “actual prejudice” as a result of the error.
Brecht v. Abrahamson, 507 U.S. 619, 637 (citation omitted). In Brecht, the Supreme Court
announced the proper standard for determining whether actual prejudice occurred in the context
of harmless error: the error must have had a “substantial and injurious effect or influence in
determining the jury’s verdict.” Id. at 638. O’Neal v. McAninch clarified that this standard is
met when a federal court “is in grave doubt about whether a trial error of federal law had
substantial and injurious effect or influence in determining the jury’s verdict.” 513 U.S. at 436
(citation and internal quotation marks omitted). “[G]rave doubt [ ] mean[s] that, in the judge’s
mind, the matter is so evenly balanced that he feels himself in virtual equipoise as to the
harmlessness of the error.” Id. at 435 (internal quotation marks omitted). In other words, an
“uncertain judge should treat the error, not as if it were harmless, but as if it affected the verdict.”
Id.
A.
Before moving to the merits, we must address the parties’ disagreements over the
applicable standard of review.
First, the parties argue over which of them has the burden of persuasion here. Brecht
states that a petitioner must “establish . . . actual prejudice,” 507 U.S. at 637 (internal quotation
No. 18-1413 Reiner v. Woods Page 8
marks omitted), but this court has said that, under Brecht, “[t]he state bears responsibility for
showing that the error had no effect on the verdict,” Rosencrantz v. Lafler, 568 F.3d 577, 590
(6th Cir. 2009). In O’Neal, the Supreme Court explained that the above language from Brecht
“is not determinative,” 513 U.S. at 438, and framed the issue in a different way:
[W]e deliberately phrase the issue in this case in terms of a judge’s grave doubt,
instead of in terms of “burden of proof.” The case before us does not involve a
judge who shifts a “burden” to help control the presentation of evidence at a trial,
but rather involves a judge who applies a legal standard (harmlessness) to a record
that the presentation of evidence is no longer likely to affect. In such a case, we
think it conceptually clearer for the judge to ask directly, “Do I, the judge, think
that the error substantially influenced the jury’s decision?” than for the judge to
try to put the same question in terms of proof burdens (e.g., “Do I believe the
party has borne its burden of showing?”).
Id. at 436–37 (citation and ellipsis omitted). Where things are “evenly balanced,” id. at 435,
O’Neal instructs that the state bears the “risk of equipoise,” as Reiner puts it.
The parties’ second disagreement as to the standard of review concerns the interplay
between the Brecht standard and the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”).2 AEDPA limits the ability of federal courts to grant habeas relief to a state prisoner
whose claim “was adjudicated on the merits in State court.” 28 U.S.C. § 2254(d); see Fry v.
Pliler, 551 U.S. 112, 119 (2007). That is, the state court’s merits adjudication must have either
“resulted in a decision that was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States” or “resulted
in a decision that was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” § 2254(d)(1)–(2).
Because the Michigan Court of Appeals adjudicated Reiner’s Sixth Amendment claim on
the merits, the parties agree that AEDPA applies here. But they disagree as to how its limitation
interacts with the standard articulated in Brecht (and O’Neal). The state argues that we should
apply AEDPA deference separate and apart from the Brecht analysis. In its words, “a habeas
petitioner must both clear the Brecht hurdle and show that the state court’s harmlessness
2
Congress passed AEDPA after the Supreme Court issued Brecht and O’Neal.
No. 18-1413 Reiner v. Woods Page 9
adjudication is an unreasonable application of Chapman.” Reiner contends that Brecht “is the
only harmlessness test the Court need apply here.”
The Supreme Court and this court have made clear that “Brecht is always the test” for
evaluating harmless error on collateral review, even where AEDPA applies. Ruelas v.
Wolfenbarger, 580 F.3d 403, 411–12 (6th Cir. 2009). In Fry v. Pliler, the petitioner argued that
“AEDPA replaced the Brecht standard of actual prejudice[ ] with the more liberal
AEDPA/Chapman standard which requires only that the state court’s harmless-beyond-a-
reasonable-doubt determination be unreasonable.” 551 U.S. at 119–20 (internal quotation marks
and citations omitted). But the Supreme Court rejected that argument and held “that in § 2254
proceedings a court must assess the prejudicial impact of constitutional error in a state-court
criminal trial under the ‘substantial and injurious effect’ standard set forth in Brecht” regardless
of whether the state court evaluated harmlessness under Chapman. Id. at 121–22. The Court
added that “it certainly makes no sense to require formal application of both tests
(AEDPA/Chapman and Brecht) when the latter obviously subsumes the former.” Id. at 120.
Following Fry, this court held that “[i]n this Circuit, Brecht is the standard for reviewing all
(non-structural) errors on collateral review.” Ruelas, 580 F.3d at 411.
The state argues that the Supreme Court’s subsequent decision in Davis v. Ayala changed
this dynamic. There, the Court repeated Fry’s statement that “a federal habeas court need not
‘formal[ly]’ apply both Brecht and ‘AEDPA/Chapman,’” but emphasized that neither Brecht nor
Fry “abrogate[d] the limitation on federal habeas relief that § 2254(d) plainly sets out.” 135
S. Ct. at 2198 (quoting Fry, 551 U.S. at 119–20). The Court also engaged in a full analysis of
the California Supreme Court’s harmlessness decision under AEDPA/Chapman. Id. at 2198–99.
Thus, the state has at least a colorable argument that AEDPA/Chapman should be applied
separately from Brecht.
The problem for the state is that our precedent forecloses this approach. This court
recently held that “Ruelas, which has not been affected by Ayala, . . . clearly announc[ed] that in
the Sixth Circuit on habeas review we always apply Brecht and need not also apply
AEDPA/Chapman.” O’Neal v. Balcarcel, 933 F.3d 618, 625 (6th Cir. 2019). The state argues
in a footnote that Balcarcel was wrongly decided, but, right or wrong, we are obligated to follow
No. 18-1413 Reiner v. Woods Page 10
that published precedent. See United States v. Clinton, 338 F.3d 483, 489 (6th Cir. 2003); 6th
Cir. R. 32.1(b). And, as discussed below, even if we were to separately apply
AEDPA/Chapman, we would find that the Michigan Court of Appeals’ decision on the merits
constituted an unreasonable application of Chapman.
B.
We evaluate whether a Confrontation Clause violation was harmless using the list of
factors articulated in Delaware v. Van Arsdall, 475 U.S. at 684. See Jensen v. Romanowski, 590
F.3d 373, 379 (6th Cir. 2009). They “include the importance of the witness’ testimony in the
prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence
corroborating or contradicting the testimony of the witness on material points, the extent of
cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s
case.” Van Arsdall, 475 U.S. at 684. The state focuses its arguments on the second and fifth
factors. We address each below.
Importance of Lewandowski’s statements in the prosecution’s case. The state admits that
“Lewandowski’s statements were important to the prosecution’s case.” Similarly, the Michigan
Court of Appeals observed (in its discussion of hearsay) that Lewandowski’s statements “were
strong circumstantial evidence that [Reiner] was the perpetrator of the home invasion” and “went
to the very heart of the prosecutor’s case.” Reiner, 2014 WL 1515371, at *4.
Beyond that, the prosecution’s prominent treatment of Lewandowski’s statements at trial
highlights their importance to its case. The prosecutor’s opening statement began: “Did you
ever wonder what a life was worth? Because of Joseph Reiner, a 70-year JoAnne Eisenhardt’s
life was worth $2. $2.” He mentioned Lewandowski for the first time a few sentences later, and
repeatedly discussed Eisenhardt’s jewelry throughout. Similarly, during his closing argument,
the prosecutor discussed Lewandowski and the jewelry several times, called his testimony
“critical,” and stated that “I really do wish I could bring Mr. Lewandowski in to testify.”
A prosecutor’s heavy reliance on testimony during closing argument evidences its importance in
the case. McCarley v. Kelly, 801 F.3d 652, 666 (6th Cir. 2015); see Madrigal v. Bagley,
413 F.3d 548, 552 (6th Cir. 2005) (“The prosecution in fact emphasized the importance [of]
No. 18-1413 Reiner v. Woods Page 11
Cathcart’s audiotaped statement by pointing out in its closing argument twenty things from
Cathcart’s statement . . . .” (internal quotation marks omitted)). The jury’s conduct here does as
well. During deliberations, the jury asked for several exhibits, including Eisenhardt’s rings.
This indicates that the jurors thought them “significant.” See Vasquez v. Jones, 496 F.3d 564,
576 (6th Cir. 2007).
The other evidence (or lack thereof) also shows the importance of Lewandowski’s
statements. “[T]he Supreme Court has recognized that in the absence of any physical evidence,
‘[t]he jury’s estimate of the truthfulness and reliability of a given witness may well be
determinative of guilt or innocence.’” Blackston v. Rapelje, 780 F.3d 340, 355 (6th Cir. 2015)
(second alteration in original) (quoting Napue v. Illinois, 360 U.S. 264, 269 (1959)). That’s true
here, where the prosecution’s case relied almost entirely on circumstantial evidence. And, as to
Lewandowski, cross-examination—“the principal means by which the believability of a witness
and the truth of his testimony are tested,” Davis, 415 U.S. at 316—was not available.
Lewandowski’s statements provided the strongest evidence in the prosecution’s case of
Reiner’s guilt. This court has found the Brecht standard was satisfied in similar situations. See
Blackston, 780 F.3d at 360 (offending “testimony was the linchpin of the state’s case”); Calvert
v. Wilson, 288 F.3d 823, 834 (6th Cir. 2002) (offending testimony “was the most compelling
piece of evidence against Calvert”). Because Lewandowski’s statements were the most
important evidence presented at trial and “went to the very heart of the prosecutor’s case,”
Reiner, 2014 WL 1515371, at *4, this factor favors Reiner.
Whether Lewandowski’s statements were cumulative. The state argues that two pieces of
evidence presented at trial made Lewandowski’s statements cumulative. According to the state,
Kosciolek’s testimony “that he gave Reiner a ride to a bus stop, which was on the same street as
another bus stop that was near the Gold Shop[,] . . . links Reiner to the place where Eisenhardt’s
jewelry was sold.” On this point, Kosciolek’s account is circumstantial (requiring inferences
from the jury), while Lewandowski’s is direct evidence; he stated definitively that Reiner entered
his shop and sold him the jewelry. Kosciolek’s testimony is also substantially weaker.
Kosciolek testified that he dropped off Reiner near a bus stop seven miles away from the Gold
No. 18-1413 Reiner v. Woods Page 12
Shop. That the Gold Shop was on the same street and near a different bus stop barely helps the
prosecution.
The state also contends that the receipts from the Gold Shop made Lewandowski’s
testimony cumulative. The receipts were dated January 31, February 9, February 14, and
February 23, respectively, all in the year 2011. Reiner’s brief accurately summarizes the
information contained in the receipts:
Three of those receipts, each of which predated February 23, bore Mr. Reiner’s
name, along with a signature (and, in two cases, a thumb print), and indicated that
Mr. Reiner had sold items to Mr. Lewandowski. The fourth receipt is dated
February 23 and indicates that a seller received $2 for “gold,” without specifying
the nature of the item or items sold. The February 23 receipt bears a signature but
does not otherwise indicate the name of the seller and does not contain a thumb
print.
(Footnote and record citations omitted). Sergeant Cynthia Edwards, a “latent print examiner,”
testified on cross-examination that “no identifiable prints could be obtained” from the February
23 receipt for Reiner.
Unlike the other receipts, the fourth receipt (the one dated the same day as the home
invasion and stabbing) did not have any readily identifiable information connecting Reiner to it.
And the other receipts only proved that Reiner had been in the shop on prior occasions, before
the day of the home invasion and stabbing. The prosecutor argued to the jury that the signature
from the February 23 receipt matched Reiner’s signature on the others, but presented no expert
or layman’s testimony supporting that contention.3
The state points out that the jury was perfectly capable of comparing the signatures
without witness testimony, given that the receipts were in evidence. Michigan Rule of Evidence
901 allows the trier of fact to “authenticate a signature by comparison with specimens which
have been authenticated,” and the Michigan Court of Appeals found that “[t]he authentication
3
This wasn’t for lack of trying. When introducing the receipts during the direct examination of Detective
Ernatt, the prosecutor asked him if he could read the signature on the February 9 receipt. Ernatt answered “[n]o, I
cannot.” The prosecutor did not ask Ernatt whether he could read the signatures on the other receipts. During the
redirect of Sergeant Edwards, the prosecutor tried again, asking if “[t]hose signatures look similar to you?” Edwards
responded “I can’t talk about those signatures. I don’t have any training in--” before the prosecutor cut her off and
ended the examination.
No. 18-1413 Reiner v. Woods Page 13
requirement for defendant’s signatures on the [January 31 and February 14 receipts] was met
where defendant was listed as the customer on the records and the records contained his
thumbprint.” Reiner, 2014 WL 1515371, at *5 n.6. In this way, the state argues, “the
prosecution established that Reiner was in the Gold Shop on the day of the crime and made a
transaction.”
This evidence provides stronger support for the state’s cumulative-evidence argument
than Kosiolek’s testimony. But, again, it is much more attenuated than Lewandowski’s direct
statement that Reiner came into his shop and sold him Eisenhardt’s jewelry. The February 23
receipt did not describe the item(s) sold specifically (beyond the single word “gold”), and
Eisenhardt’s ring was found in a tin with other “[m]iscellaneous jewelry.” So in addition to
engaging in the signature-comparison exercise, the jury had to infer that Eisenhardt’s ring got
there because Reiner sold it to Lewandowski. Indeed, without Lewandowski’s testimony, there
was no proof that Reiner ever possessed Eisenhardt’s jewelry.
On this factor, this case is not as close as others that have still favored the habeas
petitioner. “The mere fact that one other witness . . . has testified to a particular fact . . . does not
render other testimony on that point ‘cumulative.’” Vasquez, 496 F.3d at 576. For example, in
McCarley, the offending testimony “duplicated some of the content of” three other witnesses.
801 F.3d at 667. But the court characterized the offending testimony as “akin to a keystone
holding the arch of the State’s case together. Remove that crucial block . . . and the State’s case
collapses into disjointed pieces.” Id. And in Madrigal, where there was a “lack of forensic
evidence linking Madrigal to the crime,” the court found that the offending statement was not
cumulative, as the “jury could have believed [it] reinforced the eyewitness testimony.” 413 F.3d
at 552 (citation omitted).
No. 18-1413 Reiner v. Woods Page 14
Because the two pieces of evidence identified by the state are circumstantial,4 are
substantially less compelling, and leave inferential gaps in ways that Lewandowski’s statements
do not, this factor favors Reiner.
Presence or absence of evidence corroborating or contradicting Lewandowski’s
statements on material points. Substantively, this factor as applied here largely overlaps with the
second. See McCarley, 801 F.3d at 667. Neither party identifies any evidence contradicting
Lewandowski’s statements, and the only evidence corroborating them is described above. This
factor also favors Reiner, as the state presented little evidence to corroborate Lewandowski’s
statements.
Extent of cross-examination otherwise permitted. It is undisputed that “Lewandowski
died before trial” and Reiner “did not have a prior opportunity to cross-examine” him. Reiner,
2014 WL 1515371, at *3 n.2, *4. Where “the preclusion of cross-examination was complete, the
fourth Van Arsdall factor—the extent of cross-examination otherwise permitted—weighs heavily
in favor of the petitioner.” Cotto v. Herbert, 331 F.3d 217, 254 (2d Cir. 2003). Courts have
frequently found that this factor favors the petitioner even where some cross-examination of a
witness did occur. E.g., Brinson v. Walker, 547 F.3d 387, 396 (2d Cir. 2008) (this factor
“strongly favor[ed]” the petitioner where counsel was permitted to ask only one question
regarding bias); Vasquez, 496 F.3d at 577 (“[T]he trial court otherwise permitted little effective
cross-examination of Demond Brown’s preliminary examination testimony.”); Clark v. O’Leary,
852 F.2d 999, 1007 (7th Cir. 1988) (“Petitioner’s counsel was not allowed to examine regarding
the potential hostility or prejudice against petitioner and thus only a routine cross on the
witnesses’ perception, recall, and possible prompting by the State was permitted.”); see also
Davis, 415 U.S. at 318 (“While counsel was permitted to ask Green whether he was biased,
counsel was unable to make a record from which to argue why Green might have been biased or
otherwise lacked that degree of impartiality expected of a witness at trial.”).
4
Lewandowski’s statements are circumstantial as to the ultimate issue of the case, but direct as to the
discrete point focused on in this factor: that Reiner entered the Gold Shop on February 23 and sold Eisenhardt’s
jewelry to Lewandowski.
No. 18-1413 Reiner v. Woods Page 15
Because Reiner had no opportunity whatsoever to cross-examine Lewandowski, this
factor strongly favors him.
Overall strength of the prosecution’s case. The prosecution’s case against Reiner was
circumstantial. No direct physical evidence, like DNA, fingerprints, hair, or footprints tied
Reiner to the crime scene. And the prosecutor admitted during his opening statement that he was
“not . . . able to place with any witness Joseph Reiner inside [Eisenhardt’s] house.” Instead,
eyewitness testimony only placed Reiner in the general area on the morning of the incident, and
some of that testimony was inconsistent. Both Pauli and Kosciolek testified that Reiner was
dressed entirely in dark clothing, but in her call to 9-1-1, Eisenhardt described her attacker as
wearing a “blue jean jacket.” On cross-examination, Pauli stated that he was “[a]bsolutely sure”
Reiner was not wearing a blue jean jacket. And, as discussed above, Pauli’s and Kosciolek’s
testimonies do little to connect Reiner to the crime scene, the Gold Shop, or Eisenhardt’s
jewelry.
Kosciolek’s testimony certainly establishes that Reiner was acting strangely or
suspiciously. He did not remove his hat or coat in the car, even though he was “sweating
terribly,” he avoided eye contact, and his story of coming from a trailer park was inconsistent, as
he first stated he was “visiting a little girl, and then he sa[id], oh, a girl my age.” The police’s
investigation of that story yielded no corroborating information. Kosciolek speculated that
Reiner “was on some kind of drugs or something,” and, as it turns out, Reiner was addicted to
heroin. But the more important aspect of Kosciolek’s testimony is its placement of Reiner in the
general area of Eisenhardt’s home at around the time of the home invasion and stabbing.
There’s also Lewandowski’s other statement—the voicemail “identif[ying] defendant as
a person who had been in the Gold Shop the previous day”—which the Michigan Court of
Appeals found was not hearsay because it was not admitted for the truth of the matter asserted.
Reiner, 2014 WL 1515371, at *4. This evidence has little probative value for two reasons. First,
it “was not offered for the truth of the matter asserted,” but rather “as background evidence to
explain why Ernatt acted as he did in returning to the Gold Shop on February 25, 2011, to
conduct further investigation.” Id. Statements not admitted for their truth have less evidentiary
No. 18-1413 Reiner v. Woods Page 16
value than those that are. Second, like the receipts, it does not establish that Reiner ever
possessed Eisenhardt’s jewelry.
Reiner’s statement, given to law enforcement after his arrest in New York, about “big shit
in Michigan” has even less value. Here is that statement in context:
Q. Did you ask him about what he was going to do with -- about the
Michigan crimes?
A. Yes.
Q. What did he say to you about them?
A. He told me that he’s obviously going to have to deal with that when he
gets back here and figure it out.
Q. When he indicated that all the clothing in the car was his, did he indicate
to you whether there was any clothing in the car when he got it?
A. Yes. He said, no, all the clothing was his.
Q. There is a specific quote that I am very interested in that he, he stated to
you. You asked him, what do you know about the Michigan crimes?
What was his response?
A. He said that’s some big shit in Michigan.
After this exchange, the prosecutor changed the subject and asked about Reiner’s address.
The state’s argument that Reiner’s “big shit” statement amounted to “[a]n implicit
concession to the crime” is strained. The statement is so vague, it doesn’t say much of anything.
As Reiner argues, “[a]t most, it indicates that Mr. Reiner recognized the seriousness of the
crimes with which he could be charged, not that he was guilty of committing them.” Also, it’s
unclear which crime Reiner was referring to. Reiner was arrested in New York for an unrelated
crime because the vehicle he was driving “was reported stolen out of a jurisdiction in Michigan.”
And moments before, Reiner admitted to the officer that he “got [the car] in Michigan” and did
not have “permission and authority to be operating” it.
The state also highlights the evidence of Reiner’s subsequent crime of breaking into
another house and stealing a television, jewelry, and a car. This provides evidence of modus
operandi: breaking into homes and stealing jewelry, and it’s more persuasive than much of the
other evidence the state emphasizes more heavily. See Fed. R. Evid. 404(b)(2).
No. 18-1413 Reiner v. Woods Page 17
Ultimately, this factor favors Reiner, but less so than the others. The various other pieces
of circumstantial evidence build a relatively weak but plausible case of Reiner’s guilt. The
critical problem, however, is that none of it shows that Reiner actually possessed Eisenhardt’s
jewelry. In a case without direct evidence of Reiner’s presence at Eisenhardt’s house,
connection to those fruits of the crime was crucial in placing him there. This aspect of
Lewandowski’s statements made the case against Reiner far more compelling than it otherwise
was.
***
At this point, it’s important to reiterate what Brecht and O’Neal require, and what they do
not. “The inquiry cannot be merely whether there was enough to support the result, apart from
the phase affected by the error. It is rather, even so, whether the error itself had substantial
influence.” O’Neal, 513 U.S. at 438. Here, “[t]hough it is impossible to speculate how the trial
may have played out under different circumstances,” application of the Van Arsdall factors
establishes that “the prosecution’s case was materially weaker” without Lewandowski’s
statements—the strongest evidence connecting Reiner to the home invasion and stabbing. See
Jensen, 590 F.3d at 381. This creates, at the very least, “grave doubt” as to whether the error had
a “substantial and injurious effect or influence in determining the jury’s verdict.” O’Neal,
513 U.S. at 435.
C.
Even if we were to engage in a separate analysis under AEDPA/Chapman, as the state
argues for, we would find that the Michigan Court of Appeals unreasonably applied Chapman in
its merits adjudication of the harmlessness issue.
To begin, the Michigan Court of Appeals did not cite or otherwise mention Van Arsdall
or the factors it discusses.5 One of the two cases the court did cite, People v. Shepherd, includes
a citation to Van Arsdall, but only for the general proposition that “[h]armless error analysis
applies to claims concerning Confrontation Clause errors.” 697 N.W.2d 144, 146 (Mich. 2005).
5
The court did not mention Chapman either, but it did correctly identify the harmless-beyond-a-reasonable-
doubt standard. Reiner, 2014 WL 1515371, at *4.
No. 18-1413 Reiner v. Woods Page 18
Substantively, the only two factors the court discussed were the cumulative-testimony and
overall-strength factors. The court did mention elsewhere that Reiner had no opportunity to
cross-examine Lewandowski, but there is no indication from the opinion that the court
considered this fact in its harmlessness determination. Also, the court declared elsewhere that
Lewandowski’s statements constituted “strong” evidence and “went to the very heart of the
prosecutor’s case,” but did not afford that conclusion any weight in its harmless determination.
Reiner, 2014 WL 1515371, at *4. This failure to acknowledge Van Arsdall or consider most of
its relevant factors provides evidence that the court unreasonably applied Chapman.
As for the factors the court did consider, the court put undue weight on two pieces of
evidence: the Gold Shop receipts and the “big shit” statement. As discussed above, the receipts
by themselves fail to establish that Reiner ever possessed Eisenhardt’s jewelry, and the “big shit”
statement fails to establish much of anything due to its vagueness and the fact that Reiner’s
subsequent, independent Michigan crime loomed large over the interrogation. Given the
weakness of the prosecution’s case and the high burden the state was required to satisfy, we
would hold that the Michigan Court of Appeals unreasonably applied Chapman when it
determined that the admission of Lewandowski’s statements was harmless beyond a reasonable
doubt. See Merolillo v. Yates, 663 F.3d 444, 458 (9th Cir. 2011) (finding, in the alternative to
the Brecht standard, that the petitioner would have satisfied AEDPA/Chapman based partially on
“the inherent weaknesses of the [prosecution’s] case”).
V.
For the reasons discussed above, we reverse the district court’s judgment and remand
with instructions to grant a conditional writ of habeas corpus directing the state to either release
Reiner from custody6 or retry him within an appropriate period to be determined by the district
court.
6
This would, of course, apply only to Reiner’s imprisonment for the convictions at issue in this case, and
would not affect the state’s custody of Reiner based on any other convictions stemming from separate incidents.
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01-03-2023
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04-07-2020
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https://www.courtlistener.com/api/rest/v3/opinions/3385285/
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In this case appellees filed a bill in equity against the appellant, Peninsula Terminal Company, seeking to rescind an executory contract for the purchase of certain described real estate. The grounds relied on for the rescission were certain alleged fraudulent representations charged to have been made by one Richard A. Johnson, an alleged agent of the vendor, as an inducement for the entering into the contract by the vendees. The answer of the defendant denied the agency of Johnson with respect to the representations and voluminous testimony was taken on that issue. The relationship of the supposed agent, Johnson, to the defendant Company, concerning the subject matter of the contract and the representations involved, therefore became one of the material questions which the Chancellor was required to decide in this cause as a question of fact.
The Master, appointed and empowered to make findings of law and fact, found that the contract of purchase entered into by the complainants, Charles W. Zaring, and his wife, Helen Zaring, were entered into as a result of misrepresentations of material facts chargeable to the defendant company; that the lot or property contracted to be sold was and is not suitable nor desirable for the purpose for which it was represented and undertaken to be sold; that it would be contrary to equity and good conscience to enforce the contract as entered into by Zaring and his wife by requiring Zaring to pay the balance of the purchase *Page 89
price; that on the contrary complainants should have the relief of rescission prayed for in the bill.
The master's findings were approved by the Chancellor in all particulars and a decree was entered by the court which released and relieved the complainants from any and all liability arising out of the rescinded contracts and promissory notes executed contemporaneously therewith and as part of the consideration therefor. In addition to relief by way of rescission, the court entered a further decree adjudging that the defendant, Peninsular Terminal Company, repay to the contracting parties the sum of $7,053.34 representing moneys advanced to the defendant company under the rescinded contract and the interest thereon. An equitable lien upon the vended property for the amount of this money decree was adjudicated in complainant's favor and foreclosure of same ordered to satisfy the amounts determined to be due. The appeal is from the final decree.
A majority of the Court are of the opinion that the decision of this case is controlled by that long line of authorities emanating from this Court wherein it has been declared that the findings of a master in chancery, approved by the Chancellor and sustained by him as the basis for his final decree, will not be reversed in this Court unless it is made to appear that the findings of fact are clearly erroneous. See E. O. Painter Fertilizer Co. v. Foss, 107 Fla. 464, 145 Sou. Rep. 253 and cases cited. It is further the opinion of a majority of the Court that the findings of the Chancellor in this case have not been demonstrated to be clearly erroneous, in view of the fact that there is substantial, competent evidence to sustain the complainant's contention that one Richard A. Johnson, while acting as agent of the defendant company, did in fact and in law, as such agent, make the false and fraudulent misrepresentations *Page 90
charged as having been made by him and calculated to deceive complainants in the premises.
Included in the decree was an allowance of interest at the rate of eight per centum per annum from the date of the making of the payments made by complainants on the contract allowed to be rescinded, instead of interest from the date of the institution of the suit by which the rescission was sought to be accomplished. The amount of interest decreed was $2,138.34 which was computed as from the date of the payments made under the contract and not from the date of the rescission, which in this case was the date of the institution of the suit. To the extent that the allowance for interest exceeds an amount computed from the date of the institution of the suit, the decree is erroneous and should be reversed with directions to modify the decree by allowing interest on the sum of $4,815.00, the aggregate of complainant's payments, only from the date of the institution of this suit.
In administering the remedy of rescission and cancellation of contracts for misrepresentations occurring in the inducing factual situation which has led up to the execution of the particular contract whose rescission and cancellation is sought, the fundamental theory on which equity acts is restoration, and in order to obtain such relief the complainant must offer to do equity and must do equity toward the defendant. Everglade Cypress Co. v. Tunnicliffe, 107 Fla. 675, 148 Sou. Rep. 192; Bryan v. Duncan, 106 Fla. 357, 143 Sou. Rep. 353. In the present case the first step in complainant's election to disaffirm the transaction in which the contract and notes sought to be rescinded and cancelled were given, was the institution of the present suit and no interest on the amounts paid under the contracts should be decreed for periods of time prior to the date of *Page 91
the institution of the present proceeding, because the rescission and cancellation which has been brought about by the decree that has been entered, does not relate back further than the date of the institution of the suit in this case.
Final decree affirmed in part and reversed in part, costs of appeal to be charged in equal proportions against the parties.
DAVIS, C. J., and WHITFIELD, ELLIS, TERRELL and BROWN, J. J., concur.
BUFORD, J., dissents.
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This original proceeding in habeas corpus.
In short, the Petitioner contends that he is entitled to be discharged from custody of the Custodian of the State Prison in which prison he is serving a sentence of fifteen years under judgment of conviction of robbery, the contention being that the judgment is void. The judgment was in the following language, to-wit:
"STATE OF FLORIDA v. PAUL DIXON.
"ROBBERY FROM THE PERSON WHILE ARMED.
"You having been convicted of the charge of the indictment of Robbery from the person while armed, the Court adjudges you to be guilty; It is, therefore, the judgment of the Court and sentence of the law that you, PAUL DIXON, for your said offense, be confined at hard labor in the State Prison of the State of Florida, for the period of FIFTEEN (15) YEARS.
"Thereupon the Prisoner was remanded to the custody of the Sheriff of Broward County, Florida." *Page 486
The Indictment under which Petitioner was convicted charges that:
"PAUL DIXON, late of the County of Broward, aforesaid in the Circuit and State aforesaid, on the 24th day of October, in the year of our Lord One Thousand Nine Hundred and Thirty-four, with force and arms at and in the County of Broward aforesaid unlawfully and feloniously an assault did then and there make upon one Lawrence H. Miner and Roland Kelly and did then and there feloniously rob, steal and take from the person or custody of the said Lawrence H. Miner property or money, the subject of larceny, to-wit: certain bank bills and notes, commonly known and denominated lawful currency of the United States of America, the number and denomination of which are to the grand jury unknown, a more particular description of which is to the grand jury unknown, amounting in the aggregate to the sum of Thirty-nine ($39.00) Dollars, lawful currency of the United States of America, and of the value of Thirty-nine ($39.00) Dollars, the property of the said Lawrence H. Miner, against the will of the said Lawrence H. Miner."
The Petitioner contends that the judgment of conviction was of the offense denounced by Section 5055 R.G.S., 7157 C.G.L., as amended by Chapter 13792, Acts of 1929. The contention is not supported by the record. The indictment does not attempt to charge the elements of the crime of robbery denounced by this section of the statute. It does, however, sufficiently charge the offense denounced by Section 5056 R.G.S., 7158 C.G.L., and the judgment is a sufficient judgment under provisions of that section. The words in the judgment "while armed" should be construed and held to be surplusage because they mean nothing which will add to or take from the judgment. The gist of the offense is robbery from the person and it is immaterial whether *Page 487
that person be armed or not. The language "while armed" as used in the judgment is so used as to refer to or describe the person robbed and not to describe the condition of the robber in this regard. The section of the statute 5055 R.G.S., as amended by Chapter 13792, supra, is headed:
"ROBBERY BY PERSON ARMED" and not "ROBBERY FROM A PERSON WHILE ARMED." Therefore, the contention that the defendant was adjudged to have been guilty of the offense denounced by that section is not tenable.
The judgment is not void. The penalty imposed was the penalty prescribed as the maximum under Section 5056 R.G.S., 7158 C.G.L., and, therefore, the sentence was legal.
The writ of habeas corpus should be quashed and the Petitioner remanded to the custody of the Commissioner of Agriculture of the State of Florida as Custodian of State Prisoners.
So ordered.
ELLIS, P.J., and TERRELL, J., concur.
WHITFIELD, C.J., and BROWN and DAVIS, J.J., concur in the opinion and judgment.
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393 N.W.2d 309 (1986)
Robert J. HURTADO, Appellee,
v.
IOWA DEPARTMENT OF JOB SERVICE and Mead Containers d/b/a Waterloo Corrugated Box, Appellants.
No. 85-1040.
Supreme Court of Iowa.
September 17, 1986.
Walter F. Maley, Blair H. Dewey and Joseph L. Bervid, Des Moines, for appellant Iowa Dept. of Job Service.
Cheryl L. Weber, Waterloo, for appellant Mead Containers d/b/a Waterloo Corrugated Box.
Kay Delafield, Waterloo, for appellee.
Considered by REYNOLDSON, C.J., and LARSON, SCHULTZ, CARTER, and WOLLE, JJ.
CARTER, Justice.
Mead Containers (Mead), the employer of petitioner, Robert J. Hurtado, and Iowa Department of Job Service (the agency) appeal from the district court's determination that conduct causing petitioner's discharge was not disqualifying misconduct for purposes of unemployment benefits. The court of appeals affirmed the district court, and we granted further review.
The evidence presented before the agency indicates petitioner was a fourteen-year employee of Mead prior to being discharged on September 21, 1984. The work rules contained in the collective bargaining agreement between Mead and the union of which petitioner was a member provided that "deliberate sleeping on duty" was cause for immediate discharge. On September 14, 1983, petitioner was discovered sleeping on the job by supervisory personnel. A notation of that occurrence was placed in his employment file, but he was not discharged. On September 21, 1984, he was discovered sleeping in a restroom by supervisory employees about one and one-half hours after reporting for work. Based on this violation of the work rules, petitioner's employment was terminated effective that date.
Petitioner's subsequent claim for unemployment benefits was denied by an agency claims deputy based on the misconduct disqualification contained in Iowa Code section 96.5(2) (1983). Petitioner appealed that decision to an agency hearing officer. He testified his sleeping was the result of job-related fatigue caused by working several consecutive twelve-hour days and lack of *310 sleep from an injured back and diseased gums. He testified that recurring back pain and discomfort associated with diseased gums had motivated him to lie down to rest his back. He indicated this circumstance permitted him to unintentionally fall asleep.
The hearing officer issued a written decision finding that petitioner was guilty of deliberate sleeping on the job in violation of company work rules. He concluded that this was disqualifying misconduct under agency rules. The decision of the hearing officer was adopted as the final agency decision by the appeals board. The appeal to the district court and its resulting reversal of the agency followed. Other facts necessary to our determination of the appeal will be discussed in connection with our consideration of the legal issues presented.
I. Validity of District Court's Finding That Claimant's Actions Did Not, as a Matter of Law, Constitute Misconduct Under Section 96.5(2).
Appellants' primary contention on appeal is that the district court erred in its determination that the acts which caused petitioner's discharge did not constitute disqualifying misconduct under section 96.5(2). They correctly assert that, because the agency ostensibly reached the opposite conclusion on the facts, the court was required to find for the petitioner as a matter of law in order to upset the agency's decision.
Cases involving misconduct under the employment security laws are not concerned with the available grounds for discharge under the contract of hire. The inquiry is whether the facts establish grounds for disqualification from unemployment benefits under Iowa Code section 96.5(2). That statute provides that persons are disqualified for unemployment benefits if it is determined that they have been discharged for misconduct in connection with their employment. For purposes of applying this statutory disqualification, the regulations of the agency define misconduct as:
[A] deliberate act or omission by a worker which constitutes a material breach of the duties and obligations arising out of such worker's contract of employment. Misconduct as the term is used in the disqualification provision as being limited to conduct evincing such willful or wanton disregard of an employer's interest as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of employees, or in carelessness or negligence of such degree of recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to the employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are not to be deemed misconduct within the meaning of the statute.
370 Iowa Admin. Code § 4.32(1)(a). We have accepted this definition as accurately reflecting the intent of the legislature. Huntoon v. Iowa Department of Job Service, 275 N.W.2d 445, 448 (Iowa), cert. denied, 444 U.S. 852, 100 S. Ct. 105, 62 L. Ed. 2d 68 (1979).
A companion regulation provides that the employer bears the burden of proof in establishing misconduct for purposes of the statutory disqualification. 370 Iowa Admin. Code § 4.32(4). See Billingsley v. Iowa Department of Job Service, 338 N.W.2d 538, 540 (Iowa Ct.App.1983). In stating his version of the facts, petitioner does not dispute the employer's evidence that he was found sleeping on the job approximately one and one-half hours after reporting for work. Nor does his legal argument refute the position of the agency and the employer that willful sleeping on the job in violation of work rules can constitute misconduct under the applicable statute and regulations. He urges that a finding of disqualifying misconduct is not *311 warranted in the present case because the act of sleeping was a consequence of job fatigue from a combination of several twelve-hour work days and loss of sleep during off hours because of recurring back pain and bleeding gums. Under these circumstances, he argues, the conduct did not manifest the degree of wrongful intent or evil design required for disqualification under 370 Iowa Administrative Code § 4.32(1)(a).
Although we accept petitioner's argument that the agency, as fact finder, could determine on the evidence he presented that his actions were not disqualifying misconduct, we cannot accept the view of the district court or the court of appeals that the agency was compelled as a matter of law to render such a finding. It was not compelled to so find, we believe, for two reasons. First, it need not have accepted as a verity petitioner's testimony concerning the reasons why he was sleeping on the job. Second, even if petitioner's statement of reasons was believed, the agency might still have found that his unilateral and undisclosed decision to rest his fatigued body at the time and place in question was, nevertheless, a willful or wanton disregard of the employer's interest. Considering the record before the agency as a whole, we conclude the district court and the court of appeals were not justified in resolving the issue of petitioner's benefit eligibility as a matter of law.
II. Sufficiency of Agency Findings With Regard to Facts Alleged to Constitute Disqualifying Misconduct.
We next consider whether the findings of fact contained in the final agency decision adequately resolved the conflicting claims with regard to the allegedly disqualifying misconduct. The district court believed the agency findings were deficient with regard to crucial issues.
Iowa Code section 17A.16(1) (1983) provides that both a proposed and a final agency decision "shall be accompanied by a concise and explicit statement of underlying facts supporting the findings." In the present case, the fighting issue is the weight to be accorded petitioner's contentions that his conduct was the result of job-related fatigue aggravated by health problems, and, consequently, was not sufficiently culpable to warrant his disqualification from unemployment benefits. Petitioner urges that the record fails to show the hearing officer adequately considered his version of the facts.
The absence of an express disposition of a material factual issue in an agency decision may be excused on judicial review if it is clear from the context of the issues considered and the disposition of the case what the finding was on that issue. In these situations, the result telegraphs the findings made on the material elements. As we have indicated, petitioner's showing is not insufficient as a matter of law. His contentions were sufficiently cognizable to require that they be considered, evaluated, and adjudicated by the agency. We believe, however, that record is sufficient to demonstrate that they were considered and rejected as factually inadequate. The agency's decision recited that it had heard and considered all of the evidence and claims made. It then concluded that
[t]he conduct of the claimant was contrary to and not in the best interests of the employer. The claimant's actions in sleeping while on duty show a willful and deliberate disregard of the standards of behavior which an employer has the right to expect from its employees and is therefore job misconduct within the meaning of [section 96.5(2)(a) ] of the Iowa Code. Misconduct was alleged by the employer as the reason for discharge and misconduct has been established by the record.
We conclude the findings are sufficient to support the disqualification and the evidence is sufficient to support the findings. The decision of the court of appeals is vacated. The decision of the district court is reversed.
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED.
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDWIN OMAR FLORES No. 18-35460
TEJADA; GERMAN VENTURA
HERNANDEZ, on behalf of D.C. No.
themselves as individuals and 2:16-cv-01454-JLR
on behalf of others similarly
situated *,
Petitioners-Appellees, OPINION
v.
ELIZABETH GODFREY, Field
Office Director; WILLIAM P.
BARR, Attorney General;
MATTHEW T. ALBENCE,
Acting Director of U.S.
Immigration and Customs
Enforcement; LOWELL
CLARK, Warden; JAMES
MCHENRY, Director of
Executive Office for
Immigration Review;
*
Because the district court dismissed Arturo Martinez Baños as a
named plaintiff long before the orders at issue in this case, we have
removed him from the case caption.
2 FLORES TEJADA V. GODFREY
CHAD WOLF, Acting
Secretary, Department of
Homeland Security, **
Respondents-Appellants.
Appeal from the United States District Court
for the Western District of Washington
James L. Robart, District Judge, Presiding
Argued and Submitted November 13, 2019
Pasadena, California
Filed April 7, 2020
Before: FERDINAND F. FERNANDEZ, MILAN D.
SMITH, JR., and ERIC D. MILLER, Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.;
Partial Concurrence and Partial Dissent by
Judge Fernandez
**
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Chad
Wolf is automatically substituted as the Acting Secretary of the U.S.
Department of Homeland Security and Matthew T. Albence is
automatically substituted as the Acting Director of U.S. Immigration and
Customs Enforcement.
FLORES TEJADA V. GODFREY 3
SUMMARY ***
Immigration
In an action where Plaintiffs—who represent a certified
class of aliens with final removal orders who are placed in
withholding-only removal proceedings, and who are
detained pursuant to 8 U.S.C. § 1231(a)(6) in the Western
District of Washington—challenged their detention, the
panel: 1) affirmed the district court’s judgment and
permanent injunction insofar as they require the Government
to provide each class member detained for six months or
longer with a bond hearing before an immigration judge
where the burden is on the Government to justify continued
detention; 2) reversed and vacated with respect to the
requirement that the Government provide class members
with additional bond hearings every six months; and
3) reversed and vacated the partial judgment for the
Government on Plaintiffs’ due process claims, and
remanded.
The district court granted partial summary judgment for
Plaintiffs and the class on their statutory claims and, for that
reason, granted partial summary judgment for the
Government on Plaintiffs’ due process claims. The court’s
permanent injunction requires three things: 1) based on
Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011) (Diouf
II), the Government must provide a class member detained
for six months or longer with a bond hearing before an IJ
when the class member’s release or removal is not imminent;
***
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
4 FLORES TEJADA V. GODFREY
2) based on Singh v. Holder, 638 F.3d 1196 (9th Cir. 2011),
the Government must justify a class member’s continued
detention by clear and convincing evidence showing that the
alien is a flight risk or a danger to the community; and 3) the
Government must provide a class member who remains
detained after an initial bond hearing at six months with
additional bond hearings every six months thereafter.
The panel explained that this appeal presented the same
core question the panel addressed the same day in Aleman
Gonzalez v. Barr, No. 18-16465: whether the court’s
construction in Diouf II survives the Supreme Court’s
decision in Jennings v. Rodriguez, 138 S. Ct. 830 (2018).
The panel reiterated its conclusions from Aleman-Gonzalez
that applied equally here: 1) Diouf II’s construction of
§ 1231(a)(6) to require an individualized bond hearing for an
alien subject to prolonged detention is not clearly
irreconcilable with Jennings; 2) Jennings does not abrogate
the court’s constitutional due process holding in Singh
regarding the applicable burden of proof; and 3) the district
court did not improperly re-apply the canon of constitutional
avoidance to § 1231(a)(6) in contravention of Zadvydas v.
Davis, 533 U.S. 678 (2001), or violate Clark v. Martinez,
543 U.S. 371 (2005).
However, the panel concluded that the district court
erred by requiring the Government to provide class members
with additional statutory bond hearings every six months.
The panel explained that the district court could not rely on
Diouf II to sustain that requirement because, in that case, the
court applied the canon of constitutional avoidance to
construe § 1231(a)(6) as requiring an individualized bond
hearing; it did not apply the canon to read an additional bond
hearings requirement into the statute. Further, the panel
concluded that this court’s decision in Robbins v. Rodriguez,
FLORES TEJADA V. GODFREY 5
804 F.3d 1060 (9th Cir. 2015) (Rodriguez III), which
required periodic bond hearings every six months for aliens
detained under other immigration detention statutes, could
not support the additional bond hearing requirements
imposed by the district court given the Supreme Court’s
reversal of Rodriguez III in Jennings.
Noting that Jennings did not address an additional bond
hearing requirement in the context of § 1231(a)(6), the panel
nonetheless found its reasoning persuasive. In Jennings, the
Supreme Court made clear that Zadvydas’s construction of
§ 1231(a)(6) to identify six months as a presumptively
reasonable length of detention was already “a notably
generous application of the constitutional-avoidance canon.”
Although Diouf II’s six-month bond hearing construction
coincides with Zadvydas’s six-month period, the panel
found no support in either Zadvydas’s reading of
§ 1231(a)(6) or the statutory text to construe the provision as
requiring additional bond hearings. Accordingly, the panel
reversed and vacated the judgment and permanent injunction
for Plaintiffs in this regard.
In doing so, the panel also reversed and vacated partial
judgment for the Government on Plaintiffs’ due process
claims. The panel explained that, because the district court
found in favor of Plaintiffs on their statutory claims, the
district court effectively treated Plaintiffs’ due process
claims as moot. Observing that that is no longer the case
given the panel’s decision, the panel remanded for the
district court to consider Plaintiffs’ constitutional claims.
Concurring in part and dissenting in part, Judge
Fernandez wrote that he would vacate the district court’s
judgment and permanent injunction entirely. Therefore,
Judge Fernandez concurred in the majority opinion to the
6 FLORES TEJADA V. GODFREY
extent that it vacated and remanded on Plaintiffs’
constitutional claims. However, in light of the views he
expressed in his dissenting opinion in Aleman Gonzalez,
Judge Fernandez respectfully dissented from the majority
opinion to the extent it affirmed the district court’s judgment
and leaves the permanent injunction in place.
COUNSEL
Matthew P. Seamon (argued) and Gladys M. Steffens
Guzman, Trial Attorneys; Gisela A. Westwater, Assistant
Director; William C. Peachey, Director; Joseph H. Hunt,
Assistant Attorney General; Office of Immigration
Litigation, United States Department of Justice,
Washington, D.C.; for Respondents-Appellants.
Matt Adams (argued), Leila Kang, and Aaron Korthuis,
Northwest Immigrants Rights Project, Seattle, Washington,
for Petitioners-Appellees.
OPINION
M. SMITH, Circuit Judge:
Edwin Omar Flores Tejada and German Ventura
Hernandez (Plaintiffs) represent a certified class of aliens
with final removal orders who are placed in withholding-
only proceedings, and who are detained in the jurisdiction of
the Western District of Washington (the District) for six
months or longer without an individualized bond hearing. In
this suit, Plaintiffs challenged Defendants-Appellants’
FLORES TEJADA V. GODFREY 7
(hereinafter, the Government 1) alleged policy and practice
of subjecting class members to prolonged detention without
an individualized bond hearing before an immigration judge
(IJ). Plaintiffs claimed statutory rights to such hearings
pursuant to the immigration detention statutes, as well as a
constitutional due process right to such hearings.
The district court granted partial summary judgment for
Plaintiffs and the class on their statutory claims and, for that
reason, granted partial summary judgment for the
Government on Plaintiffs’ due process claims. The court
entered a permanent injunction that requires three things.
First, based on our decision in Diouf v. Napolitano, 634 F.3d
1081, 1086, 1092 & n.13 (9th Cir. 2011) (Diouf II), the
Government must provide a class member who it has
detained for six months or longer with a bond hearing before
an IJ when the class member’s release or removal is not
imminent. Second, based on our decision in Singh v. Holder,
638 F.3d 1196, 1203−04 (9th Cir. 2011), the Government
must justify a class member’s continued detention by clear
and convincing evidence showing that the alien is a flight
risk or a danger to the community. Third, the Government
must provide class members who remain detained even after
an initial bond hearing at six months with additional bond
hearings every six months thereafter. The Government
1
We use the term “the Government” to refer collectively to the
following Defendants-Respondents who Plaintiffs sued in their official
capacities: (1) Elizabeth Godfrey, Field Office Director; (2) William P.
Barr, U.S. Attorney General; (3) Matthew T. Albence, Acting Director
of U.S. Immigration and Customs Enforcement; (4) Lowell Clark,
Warden, (5) James McHenry, Director of the Executive Office for
Immigration Review, (6) Chad Wolf, Acting Secretary of the U.S.
Department of Homeland Security. Our use of the uncapitalized term
“the government” should not be construed as a reference to the
Defendants-Respondents.
8 FLORES TEJADA V. GODFREY
urges us to reverse and vacate the final judgment and
permanent injunction on Plaintiffs’ statutory claims.
This appeal presents the same core question we decide
today in Aleman Gonzalez v. Barr, No. 18-16465: whether
our construction of § 1231(a)(6) in Diouf II survives the
Supreme Court’s decision in Jennings v. Rodriguez, 138 S.
Ct. 830 (2018). Our answer remains the same here. We
affirm the district court’s judgment and permanent
injunction insofar as they conform to our construction of
§ 1231(a)(6) in Diouf II. We also affirm insofar as the
judgment and permanent injunction require the Government
to the satisfy the constitutional burden of proof we identified
in Singh.
However, unlike Aleman Gonzalez, this appeal presents
us with a different question regarding our construction of
§ 1231(a)(6). The district court ordered the Government to
provide class members with additional bond hearings every
six months. We hold that the court erroneously imposed this
requirement as a statutory matter because we did not
construe § 1231(a)(6) as requiring this in Diouf II, nor do we
find any support for this requirement. We therefore partially
reverse and vacate the judgment and permanent injunction,
and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND 2
Edwin Flores Tejada and German Ventura Hernandez
joined this suit upon the filing of an amended complaint and
petition for a writ of habeas corpus in January 2017. Flores
2
We do not retrace the statutory and regulatory background set forth
in Aleman Gonzalez, and instead limit our focus to discussing the distinct
aspects of the proceedings in this case.
FLORES TEJADA V. GODFREY 9
Tejada and Ventura Hernandez are noncitizens against
whom the Government reinstated prior removal orders
pursuant to 8 U.S.C. § 1231(a)(5). The Government
detained and placed each in withholding-only proceedings
pursuant to 8 C.F.R. § 1208.31(e) after an asylum officer
determined that each had a reasonable fear of persecution or
torture if returned to his country of origin. Plaintiffs alleged
that the Government failed to provide them with an
individualized statutory bond hearing before an IJ, in
accordance with our court’s precedents. On behalf of a
putative class of similarly situated aliens in the District,
Plaintiffs claimed a statutory right to an individualized bond
hearing pursuant to 8 U.S.C. § 1226(a) and our decision in
Robbins v. Rodriguez, 804 F.3d 1060 (9th Cir. 2015)
(Rodriguez III). 3 Plaintiffs further claimed a statutory right
to a bond hearing pursuant to any of the immigration
detention statutes as well as a constitutional due process
right to such a hearing.
After the amended complaint’s filing, we held in
Padilla-Ramirez v. Bible, 862 F.3d 881, 884–87 (9th Cir.
2017), amended by, 882 F.3d 826, 830–33 (9th Cir. 2018),
that aliens with reinstated removal orders who are placed in
3
Given the then-absence of Ninth Circuit case law, Plaintiffs
claimed that they were detained pursuant to § 1226(a), finding support
in Guerra v. Shanahan, 831 F.3d 59 (2d Cir. 2016). In Guerra, the
Second Circuit held that aliens with reinstated final removal orders who
are placed in withholding proceedings are subject to detention pursuant
to § 1226(a). Id. at 62–64. We expressly rejected this approach in
Padilla-Ramirez v. Bible, 862 F.3d at 888–89, as amended, 882 F.3d
at 834–35, to hold that such aliens are detained pursuant to § 1231(a)(6).
The Third Circuit has expressly adopted our approach, Guerrero-
Sanchez v. Warden York Cty. Prison, 905 F.3d 208, 216–19 (3d Cir.
2018), whereas the Fourth Circuit has expressly adopted the Second
Circuit’s approach, Guzman Chavez v. Hott, 940 F.3d 867, 876–77, 882
(4th Cir. 2019).
10 FLORES TEJADA V. GODFREY
withholding-only proceedings are detained pursuant to
§ 1231(a)(6). Because of that decision, the district court
denied Plaintiffs’ request for a preliminary injunction that
would have required the Government to provide bond
hearings pursuant to the regulation applicable to aliens
detained pursuant to § 1226(a). 8 C.F.R. § 1236.1(d)(1).
Thereafter, upon Plaintiffs’ motion, the district court
certified a class of: “[a]ll individuals who (1) were placed in
withholding only proceedings under 8 C.F.R. § 1208.31(e)
in the [District] after having a removal order reinstated, and
(2) have been detained for 180 days (a) without a custody
hearing or (b) since receiving a custody hearing.”
The parties cross-moved for summary judgment on
Plaintiffs’ claims. The magistrate judge recommended
granting partial summary judgment for Plaintiffs on their
statutory claims. The magistrate determined that Diouf II
requires the Government to provide class members with an
individualized bond hearing, except for class members
whose release or removal is not imminent. The magistrate
determined that “[c]lass members must automatically
receive such bond hearings after they have been detained for
180 days and every 180 days thereafter” pursuant to Diouf
II, 634 F.3d at 1092, and Rodriguez III, 804 F.3d at 1085,
1089. These hearings had to “comply with the other
procedural safeguards established in Singh and Rodriguez
III,” with the Government bearing the burden of justifying
continued detention by clear and convincing evidence. The
magistrate recommended partial summary judgment for the
Government on Plaintiffs’ due process claims because “class
members are entitled to relief under § 1231(a)(6), as
construed by the Ninth Circuit in Diouf II.”
In the wake of Jennings, the parties notified the district
court of their views about Jennings’s impact on the summary
FLORES TEJADA V. GODFREY 11
judgment motions. The court determined that Diouf II and
Jennings are not clearly irreconcilable, and thus adopted and
approved the magistrate’s recommendations. The court
entered a final judgment, and a permanent injunction for
Plaintiffs on their statutory claims. The Government timely
appealed.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction over the appeal from the district
court’s final judgment pursuant to 28 U.S.C. § 1291. “We
review a grant of summary judgment de novo.” Pavoni v.
Chrysler Grp., LLC, 789 F.3d 1095, 1098 (9th Cir. 2015).
“We review permanent injunctions under three standards:
we review factual findings for clear error, legal conclusions
de novo, and the scope of the injunction for abuse of
discretion.” United States v. Washington, 853 F.3d 946, 962
(9th Cir. 2017).
ANALYSIS
The Government contends that the district court erred by
relying on Diouf II to conclude that the class members here
are entitled to a bond hearing every 180 days before an IJ, at
which the Government bears a clear and convincing burden
of proof. The Government further argues that the district
court impermissibly “re-applied” the canon of constitutional
avoidance to § 1231(a)(6) in contravention of Zadvydas v.
Davis, 533 U.S. 678 (2001), and Clark v. Martinez, 543 U.S.
371 (2005). Most of the Government’s arguments here are
indistinguishable from those we have considered and
rejected in Aleman Gonzalez.
We will not retread our analysis in Aleman Gonzalez, but
instead we reiterate our conclusions there that apply equally
here. First, Diouf II’s construction of § 1231(a)(6) to require
12 FLORES TEJADA V. GODFREY
an individualized bond hearing for an alien subject to
prolonged detention is not clearly irreconcilable with
Jennings. See Miller v. Gammie, 335 F.3d 889, 893 (9th Cir.
2003) (en banc). Consistent with Diouf II, 634 F.3d 1086,
1092 & n.13, we affirm the judgment and injunction’s
requirement that the Government must provide class
members with an individualized bond hearing after six
months of detention when a class member’s release or
removal is not imminent. Second, Jennings does not
abrogate our constitutional due process holding in Singh
regarding the applicable burden of proof at the bond hearing.
Consistent with Singh, 638 F.3d at 1203–04, we affirm the
judgment and injunction’s requirement that the Government
must bear a clear and convincing burden of proof to justify
an alien’s continued detention. Third, the district court did
not improperly re-apply the canon of constitutional
avoidance to § 1231(a)(6) or violate Clark. Consistent with
Clark, 543 U.S. at 378, the judgment and injunction apply
the same construction of § 1231(a)(6) to all class members.
Our affirmance of the judgment and injunction, however,
goes no further. In addition to the foregoing requirements
we have affirmed, the district court agreed with the
magistrate judge’s recommendation to order the
Government to provide class members with additional
statutory bond hearings every six months. The district court
imposed this additional bond hearings requirement based on
its conclusion that Jennings did not address § 1231(a)(6) and
that Diouf II remains binding. That conclusion was error
because we did not address the availability of additional
bond hearings every six months in Diouf II. In fact, we have
never squarely interpreted § 1231(a)(6) to require them.
In Diouf II, we applied the canon of constitutional
avoidance to construe § 1231(a)(6) as “requiring an
FLORES TEJADA V. GODFREY 13
individualized bond hearing, before an immigration judge,
for aliens facing prolonged detention under that provision,”
Diouf II, 634 F.3d at 1086 (emphasis added), subject to
whether the alien’s release or removal is imminent, id.
at 1092 n.13. We explained that “[s]uch aliens are entitled
to release on bond unless the government establishes that the
alien is a flight risk or will be a danger to the community.”
Id. at 1086. Although we suggested that greater procedural
safeguards are required as the length of detention increases,
we did so in the context of construing § 1231(a)(6) to require
a bond hearing before an IJ after six months of detention,
something which the government’s post-Zadvydas
regulations did not provide. Id. at 1089–92. We did not
apply the canon to read any other requirements into
§ 1231(a)(6), let alone an additional bond hearings
requirement. Thus, the court could not rely on Diouf II to
sustain the requirement.
As the magistrate judge recognized, our decision in
Rodriguez III—not Diouf II—established an additional bond
hearings requirement in the context of an immigration
detention statute. 4 In Rodriguez III, we relied on Diouf II’s
abstract discussion of the necessity of greater procedural
protections as the length of detention increases to hold that,
in the context of § 1226(a), “the government must provide
periodic bond hearings every six months so that noncitizens
may challenge their continued detention as ‘the period of . . .
4
We question whether Rodriguez III could alone provide the basis
for the additional bond hearings requirement for the § 1231(a)(6) class
here. Rodriguez III made clear that aliens detained pursuant to
§ 1231(a)(6) were not class members in that case. Rodriguez III,
804 F.3d at 1086 (“Simply put, the § 1231(a) class does not exist.”).
Although Rodriguez III imposed additional procedural requirements, it
did so only with respect to aliens detained pursuant to §§ 1225, 1226(a),
and 1226(c). Compare id. with id. at 1086–1090.
14 FLORES TEJADA V. GODFREY
confinement grows.’” Rodriguez III, 804 F.3d at 1089
(quoting Diouf II, 634 F.3d at 1091).
Jennings defined “periodic bond hearing” to encompass
a bond hearing held after an initial six months of detention,
Jennings, 138 S. Ct. at 850–51, and rejected the imposition
of such a “periodic bond hearing” requirement onto
§ 1226(a), id. at 847−48. Although we have already
explained in Aleman Gonzalez why Jennings does not
undercut our construction of § 1231(a)(6) in Diouf II as
requiring a bond hearing after six months of detention, that
determination cannot sustain the additional bond hearings
requirement the district court imposed here. The court did
not identify any authority other than our now-reversed
decision in Rodriguez III to support its additional bond
hearings requirement, nor are we are aware of any.
Rodriguez III cannot support the additional bond hearings
requirement the district court ordered in its judgment and
permanent injunction given Jennings’ reversal.
We have not previously considered whether § 1231(a)(6)
can support an additional bond hearings requirement. While
Jennings did not directly address such a requirement in the
context of § 1231(a)(6), we find its reasoning persuasive.
Jennings made clear that Zadvydas’s construction of
§ 1231(a)(6) to identify six months as a presumptively
reasonable length of detention was already “a notably
generous application of the constitutional-avoidance canon.”
Jennings, 138 S. Ct. at 843. Although Diouf II’s six-month
bond hearing construction coincides with Zadvydas’s six-
month period, we find no support in either Zadvydas’s
reading of § 1231(a)(6) or the statutory text itself to
plausibly construe the provision as requiring additional bond
hearings every six months. We accordingly reverse and
FLORES TEJADA V. GODFREY 15
vacate the judgment and permanent injunction for Plaintiffs
in this regard. 5
In doing so, we reverse and vacate the partial judgment
for the Government on Plaintiffs’ due process claims. The
district court determined that granting summary judgment
for Plaintiffs on the § 1231(a)(6) statutory claim warranted
summary judgment for the Government on Plaintiffs’ due
process claims. We understand the district court to have
effectively treated Plaintiffs’ due process claims as moot.
That is no longer the case given our decision today.
Plaintiffs have requested a remand to allow the district court
to consider their constitutional claims if we reversed on any
statutory issues. At oral argument, the Government did not
object to such a remand. We therefore conclude that a
remand is appropriate so that the district court can consider
Plaintiffs’ constitutional claims. Cf. Evon v. Law Offices of
Sidney Mickell, 688 F.3d 1015, 1035 n.12 (9th Cir. 2012).
CONCLUSION
The district court correctly determined that our
controlling construction of § 1231(a)(6) in Diouf II requires
the Government to provide a bond hearing to class members
detained in the District whose release or removal is not
imminent. The court also properly placed the appropriate
burden of proof on the Government at such a hearing. We
affirm the final judgment and permanent injunction to this
effect.
5
We underscore that our vacatur of the judgment and permanent
injunction’s additional bond hearings requirement as a statutory matter
does not foreclose any class member from pursuing habeas relief in
accordance with Zadvydas.
16 FLORES TEJADA V. GODFREY
We otherwise vacate the judgment and permanent
injunction insofar as they require, as a statutory matter, that
the Government provide class members with additional bond
hearings every six months beyond the initial bond hearing
that Diouf II requires. Consequently, we vacate the
judgment for the Government on Plaintiffs’ due process
claims and remand for further proceedings.
AFFIRMED in part, REVERSED and VACATED in
part, and REMANDED. Each party shall bear its own
costs.
FERNANDEZ, Circuit Judge, concurring in part and
dissenting in part:
I would vacate the district court’s judgment and
permanent injunction entirely. Therefore, I concur in the
majority opinion, for the reasons stated therein, to the extent
that it vacates the judgment and permanent injunction and
remands for further proceedings on Plaintiffs’ constitutional
claim. However, in light of the views I expressed in my
dissenting opinion in Aleman Gonzalez v. Barr, No. 18-
16465, slip op. at 58 (9th Cir. April 7, 2020), I respectfully
dissent from the majority opinion to the extent that it affirms
the district court’s judgment and leaves the permanent
injunction in place.
|
01-03-2023
|
04-07-2020
|
https://www.courtlistener.com/api/rest/v3/opinions/4523209/
|
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS April 7, 2020
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 19-4008
(D.C. No. 2:16-CR-00266-JNP-1)
JOHN ELISHA MAYVILLE, (D. Utah)
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the District of Utah
(D.C. No. 2:16-CR-00266-JNP-1)
_________________________________
Bretta Pirie, Assistant Federal Public Defender (Scott Keith Wilson, Federal Public
Defender, with her on the brief), Salt Lake City, Utah, for Defendant-Appellant.
Stewart M. Young, Assistant United States Attorney (John W. Huber, United States
Attorney, with him on the brief), Salt Lake City, Utah, for Plaintiff-Appellee.
_________________________________
Before BACHARACH, BALDOCK, and MURPHY, Circuit Judges.
_________________________________
BALDOCK, Circuit Judge.
_________________________________
Defendant–Appellant John Elisha Mayville pleaded guilty to possession of
methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and
possession of an unregistered firearm silencer in violation of 26 U.S.C. § 5861(d).
Exercising his right under the plea agreement, Defendant challenges the district court’s
denials of his motions to suppress evidence of drugs and firearms seized from his car
by Utah Highway Patrol troopers during a traffic stop. On appeal, Defendant argues
the troopers violated his Fourth Amendment rights described in Rodriguez v. United
States, 575 U.S. 348 (2015), because they unjustifiably prolonged the traffic stop
beyond the time needed to complete the tasks incident to the stop’s mission.
Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm. The Supreme
Court’s decision in Rodriguez constrains what law enforcement officers may do during
a routine traffic stop in the absence of additional reasonable suspicion. But Rodriguez
does not require courts to second-guess the logistical decisions of officers so long as
their actions were reasonable and diligently completed within the confines of a lawful
traffic stop. This is because reasonableness—rather than efficiency—is the touchstone
of the Fourth Amendment. Because the traffic stop here did not exceed the time
reasonably required to execute the tasks relevant to accomplishing the mission of the
stop, Defendant’s nineteen-minute roadside detention accorded with the Fourth
Amendment’s dictates. Thus, the district court did not err in denying Defendant’s
motions to suppress.
I.
Around 1:45 a.m. on May 6, 2016, Utah Highway Patrol Trooper Jason Tripodi
stopped a red Audi for traveling 71 m.p.h. in a 60-m.p.h. zone, in violation of state
law. After the Audi came to a stop, Trooper Tripodi observed the driver hunched over
in the vehicle as if he was “trying to stash something or hide something.” Trooper
2
Tripodi approached the Audi and spoke with Defendant, who was the driver and sole
occupant of the vehicle, about his speeding.
During this initial interaction, which lasted about six minutes, Defendant
informed Trooper Tripodi he was traveling to Grand Junction, Colorado, from Lake
Havasu, Arizona. Trooper Tripodi asked for Defendant’s license, registration, and
proof of insurance. While Defendant searched for these documents, Trooper Tripodi
noticed Defendant had trouble finding the requested paperwork. After several minutes,
Defendant provided his out-of-state driver’s license to Trooper Tripodi, but he was
unable to produce any registration documents for the vehicle.
According to Trooper Tripodi, Defendant “seemed confused” and “wasn’t able
to multitask like a normal individual would be able to” during this initial interaction.
Trooper Tripodi also observed that Defendant seemed like he “was drowsy, or
something was wrong, something was up.” Based on these observations, Trooper
Tripodi asked Defendant if he “was okay” multiple times. Trooper Tripodi asked
Defendant to accompany him to the patrol car to chat while he filled out the paperwork
for the stop. Defendant declined this invitation and remained in his vehicle.
Around 1:52 a.m., seven minutes after the stop began, Trooper Tripodi returned
to his patrol car and began filling out paperwork for the stop. He also radioed dispatch
to run a records check on Defendant, which consisted of two components. First,
Trooper Tripodi asked dispatch to run Defendant’s license and check for warrants.
Second, the trooper requested Defendant’s criminal history through the Interstate
Identification Index, commonly referred to as a Triple I check. After radioing dispatch
3
for the records, but before dispatch returned the results, Trooper Tripodi requested a
narcotic detector dog. He then continued working on the citation, including
“attempting to figure out whose vehicle it was because [Defendant] ha[d] no
registration paperwork.”
At approximately 1:59 a.m., Trooper Scott Mackleprang arrived at the scene
with his narcotic detector dog, Hasso. At this point, Trooper Tripodi backed up his
patrol car because he anticipated possibly “run[ning] through sobriety tests or
something like that at a later point in the stop.” After briefly speaking with Trooper
Tripodi, who remained in his patrol car and continued to work on the citation, Trooper
Mackleprang asked Defendant to exit the vehicle so he could screen it with Hasso.
Because Defendant refused, Trooper Mackleprang requested Trooper Tripodi’s
assistance. Trooper Mackleprang observed that Defendant was “real slow to answer”
and had delayed reactions, “almost like a blank stare,” which caused him to suspect
Defendant was impaired. Defendant ultimately exited the vehicle, and Trooper Tripodi
patted him down for weapons.
Trooper Tripodi then stood with Defendant on the side of the road while Trooper
Mackleprang had Hasso conduct a free-air sniff around the car. At approximately 2:05
a.m., Hasso alerted to the odor of narcotics in the vehicle. And less than thirty seconds
later, dispatch responded to Trooper Tripodi’s records request with information
indicating Defendant had a criminal record. The entirety of the traffic stop, from
Trooper Tripodi’s initial contact with Defendant to Hasso’s alert, lasted approximately
nineteen minutes.
4
The subsequent search of Defendant’s vehicle revealed a methamphetamine pipe
under the driver’s seat and two guns, one equipped with a silencer, in the engine
compartment. In the trunk, the troopers found roughly a pound of methamphetamine,
an ounce of heroin, and a scale. After discovering the guns and drugs, the troopers
placed Defendant under arrest.
The grand jury indicted Defendant for possession of methamphetamine with
intent to distribute, possession of heroin with intent to distribute, possession of an
unregistered firearm silencer, and being a felon in possession of a firearm. Defendant
filed two motions to suppress in the district court, asserting several grounds for
suppressing the evidence seized during the traffic stop. As relevant here, he moved to
suppress evidence of the drugs and firearms as fruit of an unlawful seizure under the
Fourth Amendment. Specifically, Defendant argued Trooper Tripodi’s unreasonable
extension of the traffic stop resulted in the dog sniff and subsequent search of his
vehicle.
After evidentiary hearings and oral arguments, the district court found the
troopers testified credibly and concluded Trooper Tripodi’s decision to run a Triple I
check through dispatch did not unconstitutionally extend the traffic stop.
Alternatively, the district court held the troopers possessed reasonable suspicion to
prolong the traffic stop to determine whether Defendant was impaired. The district
court accordingly denied Defendant’s motions to suppress.
Defendant later entered a conditional guilty plea, reserving the right to appeal
the district court’s denials of his motions to suppress. The district court accepted the
5
plea and sentenced Defendant to 126 months’ imprisonment. Exercising his right to
challenge the denials of his suppression motions, Defendant timely filed his notice of
appeal.
II.
“When reviewing the denial of a motion to suppress, we view the evidence in
the light most favorable to the government, accept the district court’s findings of fact
unless they are clearly erroneous, and review de novo the ultimate question of
reasonableness under the Fourth Amendment.” United States v. McNeal, 862 F.3d
1057, 1061 (10th Cir. 2017) (quoting United States v. Lopez, 849 F.3d 921, 925 (10th
Cir. 2017)). Defendant does not contest the legality of the initial traffic stop. Rather,
he contends the troopers’ actions—namely, Trooper Tripodi’s decision to run a Triple
I criminal-history check—were unrelated to the mission of the traffic stop and extended
its duration in violation of the Fourth Amendment. We disagree with Defendant’s
arguments.
A.
A traffic stop, even if brief and for a limited purpose, constitutes a “seizure”
under the Fourth Amendment and is subject to review for reasonableness. Whren v.
United States, 517 U.S. 806, 809–10 (1996). To be reasonable, a “traffic stop must be
justified at its inception and, in general, the officer’s actions during the stop must be
reasonably related in scope to ‘the mission of the stop itself.’” United States v. Cone,
868 F.3d 1150, 1152 (10th Cir. 2017) (quoting Rodriguez, 575 U.S. at 356). Because
Defendant does not contend the traffic stop was unjustified at its inception, our analysis
6
is limited to whether the stop’s “manner of execution unreasonably infringe[d]” upon
Defendant’s Fourth Amendment rights. Illinois v. Caballes, 543 U.S. 405, 407 (2005).
An officer’s authority to seize a driver “ends when tasks tied to the traffic
infraction are—or reasonably should have been—completed.” Rodriguez, 575 U.S. at
354. Officers may not prolong a stop beyond that point for the purpose of detecting
evidence of ordinary criminal wrongdoing unless separate reasonable suspicion exists
to justify further investigation. Id. at 354–55. Even de minimis delays caused by
unrelated inquiries violate the Fourth Amendment. Id. at 355–57.
Defendant argues Trooper Tripodi unlawfully extended the stop because the
Triple I criminal-history check had no relation to his speeding—the traffic infraction
at issue—and is not one of the ordinary inquiries allowed under Rodriguez. But, as
Rodriguez explained, an officer’s mission during a traffic stop is both “to address the
traffic violation that warranted the stop and attend to related safety concerns.” Id. at
354 (emphasis added and citations omitted). To be sure, this mission “includes
ordinary inquiries incident to” the traffic stop, which typically involve inspecting the
driver’s license, verifying the vehicle’s registration and insurance coverage, and
checking for any outstanding warrants against the driver. Id. at 355. Because,
however, “[t]raffic stops are ‘especially fraught with danger to police officers,’” id. at
356 (citation omitted), the Court has also included “negligibly burdensome” inquiries
an officer needs to make “to complete his mission safely” among permissible actions
incident to a traffic stop. Id. As Rodriguez explained, “[T]he government’s officer
safety interest stems from the mission of the stop itself.” Id.
7
This court has routinely permitted officers to conduct criminal-history checks
during traffic stops in the interest of officer safety. See, e.g., United States v. Burleson,
657 F.3d 1040, 1046 (10th Cir. 2011) (“[A]n officer may run a background check on a
motorist to check for warrants or criminal history even though the purpose of the stop
had nothing to do with the motorist’s history.”); United States v. Rice, 483 F.3d 1079,
1084 (10th Cir. 2007) (“While a traffic stop is ongoing . . . an officer has wide
discretion to take reasonable precautions to protect his safety. Obvious precautions
include running a background check on the driver . . . .” (citations omitted)). Notably,
in Rodriguez, the Court cited with approval our decision in United States v. Holt, 264
F.3d 1215, 1221–22 (10th Cir. 2001) (en banc), overturned on other grounds by
Muehler v. Mena, 544 U.S. 93 (2005), as an example of a proper inquiry during a traffic
stop. Rodriguez, 575 U.S. at 356; see also Cone, 868 F.3d at 1153 (recognizing
approval of Holt in Rodriguez and concluding an officer may reasonably ask questions
about a driver’s criminal history during a routine traffic stop). Our Holt decision, the
Court ably noted, “recogniz[ed] [an] officer safety justification for criminal record and
outstanding warrant checks.” Rodriguez, 575 U.S. at 356. Thus, an officer’s decision
to run a criminal-history check on an occupant of a vehicle after initiating a traffic stop
is justifiable as a “negligibly burdensome precaution” consistent with the important
governmental interest in officer safety.1
1
Several of our sister circuits have likewise concluded, post-Rodriguez, that an
officer may conduct a criminal-history check as part and parcel of the mission of a
traffic stop. See, e.g., United States v. Dion, 859 F.3d 114, 127 n.11 (1st Cir. 2017)
(“[T]he Supreme Court has characterized a criminal-record check as a ‘negligibly
8
B.
Consistent with Rodriguez and circuit precedent, Trooper Tripodi was entitled
to inquire into Defendant’s criminal record during the traffic stop. But the question
remains whether the troopers’ conduct, including Trooper Tripodi’s decision to request
a Triple I check through dispatch rather than conduct the criminal-history check on the
computer in his patrol car, was reasonable under the circumstances. See United States
v. Windom, 863 F.3d 1322, 1327 (10th Cir. 2017) (“The touchstone of our analysis
under the Fourth Amendment is always ‘the reasonableness in all the circumstances of
the particular governmental invasion of a citizen’s personal security.’”) (citation
omitted). Defendant argues it was not. Again, we disagree.
To repeat, an officer’s authority to seize a motorist “ends when tasks tied to the
traffic infraction are—or reasonably should have been—completed.” Rodriguez, 575
U.S. at 354. Thus, even ordinary inquiries incident to a traffic stop and permissible
safety precautions must be completed within a reasonable amount of time. Id. at 357.
In determining whether the duration of a traffic stop was reasonable, we consider
burdensome precaution’ that may be necessary in order to complete the mission of the
traffic stop safely.”) (quoting Rodriguez, 575 U.S. at 356)); United States v. Palmer,
820 F.3d 640, 651 (4th Cir. 2016) (“A police officer is entitled to inquire into a
motorist’s criminal record after initiating a traffic stop.”); United States v. Sanford,
806 F.3d 954, 956 (7th Cir. 2015) (“The trooper checked the occupants’ criminal
history on the computer in his car—a procedure permissible even without reasonable
suspicion.”); United States v. Frierson, 611 F. App’x 82, 85 (3d Cir. 2015)
(unpublished) (“Upon initially detaining the men, [the officer] reasonably addressed
the traffic violation that warranted the stop and attended to safety concerns. For
example, any preliminary delay in checking [the driver’s] license, registration, and
criminal history was justified as part of the stop.”).
9
whether the officers diligently pursued the mission of the stop. Id. Accordingly,
officers may not undertake safety precautions for the purpose of lengthening the stop
to allow for investigation of unrelated criminal activity. Id. at 356.
With these principles in mind, and objectively considering the totality of the
circumstances, we turn to examine Trooper Tripodi’s decision to run a Triple I check.
As explained above, an officer is permitted to run a criminal-history check as a safety
precaution during a traffic stop so long as the check does not unreasonably prolong the
stop. See id.; Holt, 264 F.3d at 1221–22. We see no reason to apply a different rule
simply because an officer elects to conduct a Triple I check through dispatch rather
than research a motorist’s criminal history on the computer in his patrol car. See United
States v. McRae, 81 F.3d 1528, 1536 n.6 (10th Cir. 1996) (indicating, in dicta, it is
reasonable for officers to run Triple I checks through dispatch as part of a routine
traffic stop); see also United States v. Hill, 852 F.3d 377, 380, 383 (4th Cir. 2017)
(holding, in the context of a twenty-minute stop, officers reasonably may search an
additional database for criminal history even though it “can be a lengthy process”).
Defendant argues the Triple I check unlawfully extended the traffic stop because
Trooper Tripodi would have completed the stop sooner if he had confined himself to
checking records via the computer in his patrol vehicle. The problem with Defendant’s
argument is twofold. First, the district court made a factual finding that the Triple I
check did not extend the time period of the stop, and Defendant has not identified any
evidence demonstrating the court’s finding was clearly erroneous. Defendant points
to evidence showing it took less than a minute for Trooper Tripodi’s onboard computer
10
to return information that showed Defendant had a valid license, his car was insured,
and the car was registered—though not to Defendant. But such a comparison is
irrelevant to our analysis. As defense counsel conceded at oral argument, nothing in
the record indicates how long it would have taken Trooper Tripodi to conduct either a
criminal-history inquiry or warrants check on the computer in his patrol car.
Second, even if the Triple I check extended the duration of the stop, Trooper
Tripodi’s request for criminal-history records through dispatch was not unreasonable
as a matter of law. Trooper Tripodi, who the district court deemed credible, testified
that he conducted the Triple I check through dispatch because the computer in his
patrol car provides limited information, especially with respect to out-of-state drivers.
The record plainly shows Defendant provided an out-of-state license and was driving
an out-of-state vehicle. Moreover, Trooper Tripodi developed concerns based on
Defendant’s apparent stashing of something under the driver’s seat, Defendant’s
demeanor during their initial six-minute interaction, and Defendant’s inability to
provide registration paperwork for the vehicle. Given these circumstances, Trooper
Tripodi’s decision to run a Triple I check through dispatch—as opposed to limiting his
records check to the computer in his patrol car—did not unreasonably prolong the stop.
Although Trooper Tripodi could have executed the traffic stop without running
the records check through dispatch, and instead relied exclusively on the information
available on the computer in his patrol car, his actions did not violate Defendant’s
Fourth Amendment rights. As the Court has repeatedly admonished, the Fourth
Amendment does not require officers to use the least intrusive or most efficient means
11
conceivable to effectuate a traffic stop. United States v. Sharpe, 470 U.S. 675, 687
(1985) (“The question is not simply whether some other alternative was available, but
whether the police acted unreasonably in failing to recognize or to pursue it.”). While
we can imagine other situations in which an officer’s decision to run a Triple I check
through dispatch would unreasonably prolong a traffic stop, that is not the case here.
The evidence in this case shows the troopers acted reasonably diligent in executing the
tasks incident to the traffic stop, and their actions did not unlawfully extend the stop
beyond the pursuit of the stop’s mission.2
In sum, the district court determined dispatch responded to Trooper Tripodi’s
records request shortly after Hasso alerted to the presence of narcotics in Defendant’s
vehicle. Defendant has not shown, and we have not found, evidence in the record
demonstrating this factual finding was clearly erroneous. Because the dog sniff and
alert were contemporaneous with the troopers’ reasonably diligent pursuit of the stop’s
2
Approximately twelve minutes passed between the time Trooper Tripodi
returned to his patrol car after his initial interaction with Defendant and when Hasso
alerted to the odor of narcotics in the vehicle. During this period, Trooper Tripodi
radioed dispatch for records, worked on filling out paperwork for the stop, backed up
his vehicle to possibly perform sobriety tests, assisted Trooper Mackleprang after
Defendant refused to exit his vehicle, patted down Defendant for weapons, and further
questioned Defendant outside of the vehicle during the dog sniff. Before Trooper
Mackleprang arrived on the scene, Trooper Tripodi can be heard on his dash cam
asking a voice-activated google device about Lake Havasu, Arizona. Defendant argues
this shows Trooper Tripodi sat idle rather than performing the tasks incident to the
traffic stop. The district court, however, credited Trooper Tripodi’s testimony that
during this time he was also filling out paperwork for the citation and attempting to
figure out ownership of the vehicle. Defendant does not attempt to show this factual
finding was clearly erroneous. Based on the record before us, none of the trooper’s
individual actions suggest a lack of diligence in pursuing the mission of the stop.
12
mission, the subsequent search of Defendant’s vehicle and discovery of evidence did
not violate his Fourth Amendment rights. The district court, therefore, properly denied
Defendant’s motions to suppress.3
***
For the foregoing reasons, the judgment of the district court is AFFIRMED.
3
Because Trooper Tripodi did not unconstitutionally extend the traffic stop by
conducting the Triple I check through dispatch, we need not consider whether the
troopers possessed reasonable suspicion to prolong the stop to investigate Defendant’s
potential impairment. We also summarily dispose of Defendant’s meritless argument
that the troopers acted unreasonably in removing Defendant from his vehicle during
the traffic stop. See Maryland v. Wilson, 519 U.S. 408, 413–15 (1997) (reaffirming
rule that an officer may order a driver out of a vehicle during a traffic stop for officer
safety reasons); Holt, 264 F.3d at 1222 (explaining an officer “may order the driver
and passengers out of the vehicle in the interest of officer safety, even in the absence
of any particularized suspicion of personal danger”) (emphasis added).
13
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01-03-2023
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04-07-2020
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https://www.courtlistener.com/api/rest/v3/opinions/4523223/
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04/07/2020
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 20-0077
No. DA 20-0077
CITY OF WHITEFISH,
Plaintiff and Appellee,
v.
PHILIP ARGALL,
Defendant and Appellant.
GRANT
Pursuant to authority granted under Mont. R. App. P. 26(1), the
Appellant is given an extension of time until May 8, 2020 to prepare,
file, and serve the Appellant’s opening brief.
Electronically signed by:
Bowen Greenwood
Clerk of the Supreme Court
April 7 2020
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01-03-2023
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04-07-2020
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https://www.courtlistener.com/api/rest/v3/opinions/3837792/
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 593
Original proceeding in mandamus by the State, on the relation of Willamette National Lumber Company, *Page 594
against the Circuit Court of the State of Oregon for Multnomah County and Alfred P. Dobson, one of the judges thereof, to compel respondents to set aside an order denying relator's motion to quash service of summons upon it in tort action commenced in Multnomah County on ground that relator's principal office and place of business was in another county and that cause of action, if any, arose in such county. On demurrer to return to alternative writ.
The Supreme Court, Hay, J., held that mandamus was a proper remedy and that relator's principal place of business for venue purposes was in county designated as such in its articles of incorporation in which it conducted its principal business of manufacturing and selling lumber and maintained a sawmill and office under supervision of a plant manager, and sustained the demurrer and granted a peremptory writ.
This is an original proceeding in mandamus, brought by the relator, Willamette National Lumber Company, an Oregon corporation, against the Circuit Court of the State of Oregon for Multnomah County and Alfred P. Dobson, one of the judges of that court. The proceeding arose out of the following facts, as disclosed by the record before us:
One Marcus Jones, claiming to have received personal injuries while working for relator at its sawmill in Linn County, Oregon, commenced an action in tort against relator, in Multnomah County, Oregon, to recover damages in respect of such injuries. Service of summons in the action was made upon relator in Multnomah County. Relator moved to quash the service, upon the ground that its principal office and place of business was in Linn County, Oregon, and nowhere *Page 595
else, and that the cause of action, if any, arose in Linn County. The motion was supported by the affidavit of William Swindells, relator's vice-president, amplified by his testimony taken before the respondent Judge Dobson. On the hearing of the motion, relator contended that the proper venue of the action was Linn County, and not Multnomah County. The motion to quash was denied, and relator thereupon instituted this proceeding, seeking a writ of mandamus commanding the respondents to set aside the order denying the motion to quash, and, in lieu thereof, to enter an order quashing such service. An alternative writ issued, and in due course the respondents made their return and answer thereto, denying generally (with certain formal admissions) the allegations of the alternative writ, with a further and separate return and answer, which incorporated as a part thereof the testimony of Mr. Swindells, taken before Judge Dobson as above mentioned. The further and separate return, as amplified by the testimony, disclosed the following:
Relator, Willamette National Lumber Company, and Willamette Valley Lumber Co. are separate corporations having separate logging and sawmill operations, but having common management, the cost of which is apportioned between them. Relator owns and operates a sawmill at Foster, in Linn County, and conducts logging operations in Linn County and a sales office in Polk County. A division of relator, doing business as Corvallis Lumber Co., operates a sawmill at Corvallis, in Benton County. Willamette Valley Lumber Co. owns and operates a sawmill and conducts logging operations in Polk County. Each of the saw-mills is operated by a plant manager, who has an office at the mill. A general manager, Mr. Lewis, supervises *Page 596
and controls the operations of all the sawmills. He lives at Salem, in Marion County, and has his office at Dallas, in Polk County. He also has office space in the offices at Foster and Corvallis. The logging operations of both corporations are under the supervision of a logging manager, who has his office at Corvallis.
In Portland, Willamette Valley Lumber Co. and relator maintain a joint office at 326 Pacific Building. On the office door are the names: Willamette Valley Lumber Company, Willamette National Lumber Company, Corvallis Lumber Co., George T. Gerlinger, Louis Gerlinger, Jr., and Wm. Swindells. George T. Gerlinger was vice-president of relator (he died October 9, 1948), and William Swindells is executive vice-president of relator and of Willamette Valley Lumber Co. The office staff consists of an auditor for both companies, a secretary, a bookkeeper and an assistant bookkeeper. These employees are paid by Willamette Valley Lumber Co. which is reimbursed in part by relator. The primary functions of the Portland office are to handle the financing of the operations of Willamette Valley Lumber Co. and of relator, and the purchase and sale of timber and timber lands. Mr. Swindells is the officer who handles the sale and purchase of timber and timber lands, but only about five per cent of such transactions involve relator. The auditor supervises the accounts and accounting of the offices of Willamette Valley Lumber Co. at Dallas, and of relator at Foster and Corvallis. Summary records are sent from these offices to Portland, and balance sheets and profit and loss statements are made up in Portland. Relator's banking is done with The First National Bank of Portland (Oregon). Its general *Page 597
account is kept in the main branch of that bank in Portland, and its payroll account in the branch at Lebanon, in Linn County. The Portland office of relator is maintained as a matter of convenience, because financing is done in Portland and the main offices of the timber-controlling firms are in Portland. If no Portland office were maintained, it would still be necessary that financial transactions and timber transactions should be conducted and closed in Portland. The directors of relator all live in Portland and for that reason hold their meetings there. The stockholders' meetings are held in Portland. The corporate books, including the stock book and the minute books of both directors' and stockholders' meetings are kept at the Portland office. The plant offices at Foster, in Linn County, Corvallis, in Benton County, and Dallas, in Polk County, all report to and are controlled by the executive officer in Portland. All decisions concerning the general policy of relator are made from the Portland office, and no officer, official or employee of relator exercises any direction, control or supervision over relator's operations outside Linn County from any location within Linn County. Mr. Swindells is the only executive officer of relator functioning in Portland. Relator has no investment in Multnomah County other than the office furniture and equipment in relator's office. Approximately three months after the commencement of the Jones action, the mechanical process of making payroll checks was moved from Foster to Portland because more efficient bookkeeping machines for that work were available in Portland than at Foster.
To such return, the relator demurred on the grounds that the matter alleged therein and in the further and *Page 598
separate return and answer does not constitute a defense, nor show sufficient or any cause for not obeying the alternative writ.
It is suggested by the respondents that mandamus is not an appropriate remedy in this case. The relator concedes that the exercise of judicial discretion cannot be reviewed by mandamus; that mandamus is an extraordinary remedy and that its use is discretionary with this court; and that mandamus is justified only where the relator has no other plain, speedy and adequate remedy in the ordinary course of the law.
The demurrer had the effect of admitting the truth of the material recitals of the return to the alternative writ. If such recitals showed that the denial of relator's motion to quash was the exercise of a judicial discretion in the premises, then, of course, mandamus will not lie to review such discretion. On the other hand, if such recitals show that the relator had a right to insist upon its statutory privilege to be sued either in the county in which it has its principal office or place of business or in that wherein the cause of action arose, then it would seem that it was the plain duty of the respondent judge to quash the service of summons, and no exercise of judicial discretion was involved.
This court has held that mandamus is a proper remedy in a case of this sort. State ex rel. v. Latourette, 168 Or. 584,125 P.2d 750; State ex rel. v. Kanzler, 129 Or. 85, 276 P. 273;State ex rel. v. Dobson, 171 Or. 492, 135 P.2d 794,137 P.2d 825; State ex rel. v. Updegraff, 172 Or. 246, 141 P.2d 251.
Respondents, in arguing to the contrary, place their chief reliance upon chapter 438, Or. L., 1949, which *Page 599
added a new section to Oregon Compiled Laws Annotated, to be numbered 10-607a, and to read as follows:
"If a motion or other form of application on special appearance be interposed and denied, the objection thereby taken shall not be waived by the subsequent entering of a general appearance; and the court's ruling thereon shall be subject to review on appeal from the final judgment, decree or other determinative appealable order in the cause or matter."
The complaint in the Jones action was filed December 28, 1948, and summons was served upon relator on December 30, 1948. On January 7, 1949, relator appeared specially and moved to quash service of summons. On June 2, 1949, the court denied such motion. A general appearance by relator thereafter would have been a waiver of its statutory immunity from being sued in a county other than that in which it has its principal office or place of business. State ex rel. Crawford v. Almeda C.M. Co.,107 Or. 18, 22, 212 P. 789; Mutzig v. Hope, 176 Or. 368, 385,158 P.2d 110; 56 Am. Jur., Venue, sections 38, 40. Section 10-607a, O.C.L.A., was not available to have relieved relator from the effects of such waiver, as that section did not become law until July 16, 1949. As the point is not before us, we do not determine whether or not, if section 10-607a had been in effect, it would have precluded relator from seeking a remedy by mandamus.
An appearance for the sole purpose of quashing the service of a summons is a special and not a general appearance. Whittierv. Woods, 57 Or. 432, 435, 112 P. 408; Multnomah Lumber Co. v.Weston Basket Co., 54 Or. 22, 26, 99 P. 1046, 102 P. 1; Stateex rel. v. Crawford, 159 Or. 377, 394, 80 P.2d 873; 3 Am. Jur., Appearances, section 19, text and note 12. The weight *Page 600
of authority holds that statutes relating to venue are "procedural merely, and not jurisdictional in the strict sense."Mutzig v. Hope, supra (176 Or. 368, 385, 158 P.2d 110). Nevertheless, relator had a right to stand upon its statutory immunity in the premises, and its resort to mandamus upon the denial of its motion to quash was proper.
Under the law of Oregon, the incorporators of a domestic corporation are required to adopt written articles of incorporation. These articles must specify the place where the corporation proposes to have its principal office or place of business. Section 77-210, O.C.L.A. The articles must be subscribed in triplicate, one of which must be filed with the corporation commissioner and another recorded in the office of the county clerk of the county in which the enterprise, business, pursuit or occupation of the corporation is proposed to be carried on, or in which its principal office or place of business is proposed to be located. Section 77-204, O.C.L.A., as amended by chapter 401, Or. L., 1941. Upon the filing of such articles with the corporation commissioner, the commissioner issues to the incorporators a certificate under his official seal, showing, among other things, the location of the corporation's principal office. Section 77-205, O.C.L.A., as amended by chapter 301, Or. L. 1945. The principal office or place of business may be changed by the directors upon a three-fourths vote of all the stock subscribed and the filing of supplementary articles of incorporation, showing such change. Section 77-211, O.C.L.A., as amended by chapter 183, Or. L., 1949.
The venue of transitory actions in Oregon is fixed by statute as follows:
"* * * the action shall be commenced and tried in the county in which the defendants, or either of *Page 601
them, reside or may be found at the commencement of the action; provided, that in any action founded on an alleged tort, the same may be commenced either in the county where the cause of action arose or in the county where the defendants, or one of them, resides or may be found at the commencement of the action; * * *." Section 1-430, O.C.L.A.
Service of summons is effected by delivery of duly certified copies of the summons and complaint, as follows:
"(1) If the action be against a private corporation, to the president or other head of the corporation, vice president, secretary, cashier, assistant cashier or managing agent, or, in case none of the officers of the corporation above named shall reside or have an office in the county where the cause of action arose, then to any clerk or agent of such corporation who may reside or be found in the county, or, if no such officer be found, then by leaving a copy thereof at the residence or usual place of abode of such clerk or agent." Section 1-605 (1), O.C.L.A.
Construing together sections 1-403 and 1-605, O.C.L.A., this court has held that the venue of transitory actions against domestic corporations may be laid in one of two counties only, that is to say, either the county in which the cause of action arose or that in which the corporation maintains its principal place of business. Mutzig v. Hope, supra (176 Or. 368, 387,388, 158 P.2d 110); State ex rel. v. Updegraff, supra (172 Or. 246,252, 141 P.2d 251); Davies v. Oregon Placer Power Co.,61 Or. 594, 597, 123 P. 906; Winter v. Union Packing Co.,51 Or. 97, 98, 93 P. 930; Holgate v. O.P.R.R. Co., 16 Or. 123,125, 126, 17 P. 859.
It is suggested by the relator that Oregon has *Page 602
"clearly rejected the doctrine that a corporation may reside or have its principal place of business in more than one county".State ex rel. v. Updegraff, supra, is cited in support of this suggestion. Whether or not that decision so holds, it would seem to be illogical to say that a corporation could have more than one principal place of business, using the adjective in the sense of "chief" or "main" (Webster) which we suppose was the sense in which it was used by the legislature. The question of which of two or more places where a corporation actually transacts business is its principal place of business does not appear to have arisen heretofore in any of the Oregon decisions.
The statutes in other jurisdictions respecting the venue of transitory actions against corporations differ considerably from ours, and, for that reason, the decisions of the courts in such other jurisdictions do not aid us greatly in our present inquiry. Under some of such statutes, a corporation may be sued not only where the cause of action arose or where the corporation is a resident, but also in any county where it exercises its corporate powers or privileges, or transacts a substantial part of its business, or maintains an agent, or where it has an office, agent or place of business, or where its chief officer resides, or where it owns property and transacts business. 19 C.J.S., Corporations, section 1296, p. 977; Miller v. Boyle Const. Co.,198 S.C. 166, 17 S.E.2d 312; Western Travelers' AccidentAssociation v. Taylor, 62 Neb. 783, 87 N.W. 950. The situation involved in many of the reported cases was that of a transitory action brought against a domestic corporation in the county designated in its articles as its principal place of business, although in fact it maintained no office or place of business, in *Page 603
such county. In such cases, it is generally held that the designation is conclusive against the corporation, but not in its favor. Higgins v. Hampshire Products, Inc., 319 Mich. 674,30 N.W.2d 390, 175 A.L.R. 1083, 1088; State ex rel. NorthwesternLand and Colonization Co. v. District Court, 191 Iowa 244, 247,182 N.W., 211; Hawk Buck Co., Inc. v. Cassidy
(Tex.Civ.App.) 164 S.W.2d 245, 246; Milwaukee Steamship Co. v. City ofMilwaukee, 83 Wis. 590, 53 N.W. 839, 841, 18 L.R.A. 353.
A corporation is a legal entity, separate and distinct from the persons who comprise its stockholders, directors or officers.United States Fidelity Guaranty Co. v. Lawrence, 184 Ga. 83,190 S.E. 346, 348; Sneed v. Santiam River Timber Co., 122 Or. 652,655, 260 P. 237; 1 Thompson on Corporations, 3d ed., section 9. The place of residence of the corporation is not determined by the residence or domicil of the stockholders, directors, or officers, or by the place where they hold their meetings. 18 C.J.S., Corporations, section 176, p. 584.
Where the legislature requires that a corporation shall designate, in its articles, the place in which its principal office or place of business is to be located, it is held that the legislative purposes in such requirement are to fix the residence of the corporation for venue purposes, to facilitate service of process, to establish the corporate situs for purposes of taxation, and to apprise stockholders where they may go to inspect the books and records of the corporation. Fletcher Cyc. Corporations, Perm. Ed., sections 140 and 4046; 18 C.J.S., Corporations, section 177, p. 586; Higgins v. HampshireProducts, Inc., supra (319 Mich. 674, 30 N.W.2d 390, 175 A.L.R. 1083, 1086); State *Page 604 ex rel. Juvenile Shoe Corp. v. Miller, 217 Mo. App. 16,272 S.W. 1066, 1067; Hawk Buck Co., Inc. v. Cassidy, supra (Tex.Civ.App. — 164 S.W.2d 245, 246).
It is contended that, as a general rule, the residence or principal place of business of a corporation for venue purposes is held to be that which is fixed by its articles of incorporation. The following cases are cited in this connection:Kibler v. Transcontinental Western Air, Inc., D.C.N.Y.,63 F. Supp. 724, 726; In re Hillmark Associates, Inc., D.C.N.Y.,47 F. Supp. 605, 606; Keehn v. S. D. Motor Lines, Inc., 41 N YS. 2d 521, 524; State v. Atlantic Ice Coal Co.,180 Ga. 285, 178 S.E. 743; Woods Gold Mining Co. v. Royston,46 Colo. 191, 103 P. 291, 292. We do not find, however, that the authorities cited support any such rule in cases where the corporation does not in fact maintain its principal place of business at the place designated in its articles. In the Hillmark Associates case, the Woods Gold Mining Co. case and Atlantic Ice Coal Co. case, each of the corporate defendants maintained places of business in more than one county or district, one of which places was that designated in its papers as its principal place of business, and, under those circumstances, the courts held or assumed that the corporation had a residence in such designated county or district. In the Kibler case, the business of the defendant was the transportation of freight and passengers by air on regular schedules and along prescribed routes, and the court applied to it the same rule as to venue as is applicable, in some jurisdictions, to suits against railroad companies, that is, that a railroad is a resident of every county through which its line passes. 56 Am. Jur., Venue, section 29, pp. 32, 33.
The argument is advanced that the residence of a *Page 605
corporation is nothing more than a legal concept for venue purposes, and that the corporation can be "found" by a process-server only at the place designated in its articles of incorporation, unless special statutes provide otherwise. While, in an abstract sense, this may be true, nevertheless, for practical purposes and in accordance with the modern view, a corporation may be said to have a local habitation or residence. Anno., 175 A.L.R. 1093.
The respondents make the point that, unless the statute so provides, the location of the principal office or principal place of business of the corporation is not conclusively determined by the articles, but is a question of fact as to third persons. In this connection, they call attention to the fact that, by section 77-213, O.C.L.A., the articles are made prima facie evidence only of the existence of the corporation and of its right to transact the business mentioned therein, but not of the place where the corporation proposes to have its principal office or place of business. As to the latter fact, respondents contend that the question is always one of fact. In support of this contention, they rely upon a number of authorities, which we shall now discuss.
In 8 Fletcher, Cyc. Corporations, Perm. Ed., section 4046, p. 508, it is stated that, according to the weight of authority, the recital in the articles of incorporation of the location of the principal office or place of business is not conclusive. In support of the text, the author cites 27 Mich. L. Rev. 578, 16 Va. L. Rev. 846, and State ex rel. Howard Cole Co., Inc. v.Circuit Court, 178 Wis. 89, 189 N.W. 259.
The article in the Michigan Law Review asserts that an ex parte declaration by a corporation in its *Page 606
certificate, while desirable for many reasons, ought not to prevent the state, in its taxing authority, from acting on the true situation. It criticizes the decision in the case ofStanton v. Tax Comm. (Ct. of App. Ohio, 1927) 159 N.E. 340, aff. Stanton v. Zangerle, 159 N.E. 823, under which a corporation was held to be entitled to have its intangible personal property listed for taxation on the tax-roll of the county in which the place was located which was designated in its articles as "the place where it is to be located or its principal business transacted." It comments that, in New York and Ohio, the courts rule that, where the statute requires the articles to state where the principal office is to be located, such statement is conclusive, even against the states in matters of taxation. It concedes, however, that the numerical weight of authority is to the contrary, and says that:
"An ex parte declaration by a corporation in its certificate, while desirable for many reasons ought not to prevent the state in its taxing authority from acting on the true situation. * * *"
The Virginia Law Review article is based upon the decision inSweeny v. Keystone Driller Co., 122 Oh. St. 16, 170 N.E. 436, which held that, in respect of the recordation of chattel mortgages, the place of residence of a corporation, as designated in its articles, is conclusive as against the corporation.
In State ex rel. Howard Cole Co., Inc. v. Circuit Court, supra, the defendant, a domestic corporation, had moved for a change of venue to the county designated in its articles as its place of business. The evidence showed that it had no office, officer, director, agent or place of business in that county, and the court *Page 607
held that, under those circumstances, it was not entitled to a change of venue.
9 Fletcher, Cyc. Corporations, Perm. Ed., section 4373, p. 163, states merely: "There are decisions * * * apparently holding that the principal office or place of business is a question of fact, regardless of the designation in the incorporation papers." But the same section recites: "Generally, the location of the principal office or place of business, i.e., its residence, for venue purposes, is according to the designation thereof in the incorporation papers, regardless of whether in fact it transacts business or has any office or agent there for the transaction of business, or of the fact that its principal office or place of business is elsewhere."
The text of 18 C.J.S., Corporations, section 176, p. 585, is succinctly but accurately summarized in the black-letter head-note as follows:
"Where a corporation's principal place of business or domicile is fixed by its charter, the charter is the best evidence of its domicile and, according to some authorities, although not others, conclusive evidence thereof. A corporation is not conclusively presumed a resident of the place where it sues."
In 4 Thompson, Corporations, 3d ed., section 3019, p. 784, it is stated:
"* * * The location of the place of business or the principal office of a corporation, for the purpose of jurisdiction, may be a question of fact, and one on which the recitals in the articles of association are not conclusive. The principal place of business, is usually held to be the place where its executive officers meet to transact the governing business of the corporation proper and where its books are kept. * * *" *Page 608
This text is qualified, on page 785, by the following:
"* * * In other words a corporation is properly suable only in the county of its incorporation, unless the statutes allow suit to be brought in jurisdictions in which the corporation conducts business or maintains an agency and, where this exceptional method is allowed, the party invoking the jurisdiction must show clearly that he comes within the exception. * * *"
In re Guanacevi Tunnel Co., (C.C.A.2d 201 F. 316, In reAmerican British Mfg. Corp., (D.C., Conn.) 300 F. 839, and Inre Wenatchee-Stratford Orchard Co., (D.C., Wash.) 205 F. 964, are all federal bankruptcy cases. Under section 2 of the Bankruptcy Act (11 U.S.C.A., section 11) jurisdiction is vested in the district courts of the United States "to adjudge persons bankrupt who have had their principal place of business, resided, or had their domicile within their respective territorial jurisdictions for the preceding six months, or the greater portion thereof, * * *." It is generally held that, in proceedings under the Bankruptcy Act, a statement in the charter of the corporation of the location of its principal place of business is not conclusive, the real question being where its principal place of business was in point of fact during the period fixed by the act. The decision in In re American British Mfg. Corp., supra, embodies an interesting discussion of the question, which is one of jurisdiction rather than of venue, and it is apparent therefrom that the bankruptcy cases are not in point upon the question involved in the case at bar.
In Gorman v. A.B. Leach Co., Inc., (D.C., N.Y.)11 F.2d 454, and Higgins v. Hampshire Products, Inc., supra (319 Mich. 674, 30 N.W.2d 390, 175 A.L.R. 1083) the designation of the corporation's principal *Page 609
place of business in its articles was held to be conclusive on venue as against the corporation, notwithstanding the fact that it actually did no business at that place.
The following cases, having to do with the situs of the intangible personal property of corporations for tax purposes, are cited by respondents: Home Fire Ins. Co. v. Benton,106 Ark. 552, 153 S.W. 830; State ex rel. Howard Cole Co., Inc. v.Circuit Court, supra (178 Wis. 89, 189 N.W. 259);Inter-Southern Life Ins. Co. v. Milliken, 149 Ky. 516,149 S.W. 875; Alabama Clay Products Co. v. City of Birmingham, 226 Ala. 631, 148 So. 328; Herdman Motor Co. v. State Board of TaxAppeals, 119 N.J.L. 164, 194 A. 870. In all of them it was held that, where the designation of the principal place of business in the corporation's articles was fictitious, such designation would not bind the taxing authority.
We are of the opinion that, while the cases cited by the respondents in this connection are authoritative when applied to situations in which a corporate defendant does not maintain any office or place of business at the place designated as its principal place of business in its charter or articles of incorporation, they are not in point in the case at bar, in which the relator actually does maintain an office and place of business at the place designated in its articles as its principal place of business, although it has other offices and places of business in the state.
The respondents maintain, however, that the actual principal office and principal place of business of the relator at the time of the commencement of the Jones action and of the service of summons therein was at Portland, in Multnomah County. They urge that the *Page 610
determinative factors in this connection are the following: (a) The place where the executive officers meet and transact the governing business of the corporation; (b) The place where the books of the corporation are kept; (c) The place where the principal banking business is done; and (d) The place from which the principal business correspondence is conducted. Their argument is that the facts alleged in the respondents' return, and admitted in effect by the relator's demurrer thereto, settle the question in favor of their contention.
In this connection, respondents again cite several federal bankruptcy cases, but, as we have endeavored to show, such cases are not in point. They cite also Colorado Interstate Gas Co. v.Federal Power Commission (C.C.A. 10th) 142 F.2d 943. That case arose upon petitions to review orders of the Federal Power Commission requiring the petitioners to make reductions in their rates to consumers for supplies of natural gas transported in interstate commerce. Section 19 (b) of the Natural Gas Act (52 Stat. 821, 15 U.S.C.A., § 717 r (b)), provided that any party to a proceeding under the act who was aggrieved by an order of the Commission might obtain a review of the order in the Circuit Court of Appeals of any circuit in which the natural gas company to which the order related was located, or had its principal place of business, or in the Circuit Court of Appeals of the District of Columbia. Motions to dismiss the petitions were filed, based upon the grounds that it appeared from the face of the petitions that the petitioning companies were private corporations organized and existing under the laws of Delaware. The Delaware laws required that the certificate of incorporation should set forth the name of the county, and the city, town, or place *Page 611
within the county in which the principal office or place of business of the corporation is located. Such laws required also that every corporation should maintain a principal office or place of business in the state. The certificates of incorporation of the corporations in question stated the location of their principal offices but were silent in respect of their places of business. It was held that the principal place of business of a corporation is where its actual business is conducted or transacted. "It is a question of fact to be determined in each particular case by taking into consideration such factors as the character of the corporation, its purposes, the kind of business in which it is engaged, and the situs of its operations." All the physical properties of one of the companies were located and its business operations were conducted within the tenth circuit. Another maintained offices in Denver (10th circuit) where its executive officers and agents supervised and administered its properties and operations. Another transported almost ninety per cent of its natural gas into the tenth circuit, and sold virtually all of it to another defendant company. The two companies last referred to were operated as a unit, having a single general manager and maintaining an office in Colorado Springs in charge of such manager, from which the supervision, direction, and management of both companies were conducted. There were approximately thirty-six employees in the office. The principal books of account were kept there. All major purchases for both companies were made there, and all bills for materials purchased were paid for by vouchers issued out of that office. The principal bank account of one of the companies was maintained at Colorado Springs (10th circuit). The court concluded *Page 612
that the principal place of business of each company, within the meaning of the statute, was in the tenth circuit. The holding was undoubtedly correct upon the facts disclosed in the opinion. The question was one of jurisdiction. The companies' argument that they were incorporated in Delaware and that, therefore, that state was their legal residence and domicil was without force, as they did no business whatever in Delaware.
Mullen v. Northern Accident Ins. Co., 26 S.D. 402,128 N.W. 483, also cited by respondents, was an action brought against a domestic insurance company upon a policy of accident insurance. The law provided that transitory actions should be tried in the judicial subdivision in which the defendant resided. The defendant conducted an accident insurance business at Aberdeen, in Brown County. The action was instituted in Lawrence County. On appeal from denial of a motion to change the venue to Brown County, the court held that for venue purposes, unless otherwise provided by statute, a domestic corporation is a resident of the county where its principal place of business is located, and that by "principal place of business" was meant "the place where its president, secretary, and board of directors meet to transact the governing business of the corporation proper, where the books of the corporation are kept, that is, where the governing power of the corporation is exercised and controlled by the board of directors and officers," and not every place where the corporation may happen to transact business. It held further that the defendant corporation was a resident of Brown County, and that the motion to change the venue to that county should have been allowed. There was no suggestion that the corporation maintained a principal or any place of business anywhere *Page 613
except in Brown County, so the case is not of much help here.
Another case cited by respondents is Partch v. Adams, 55 Cal. App. 2d 1, 130 P.2d 244. The question involved was, at what place shares of stock of a domestic corporation could be subjected to attachment. The articles designated Sacramento County as the corporation's principal place of business, but the evidence showed that all of its business was done in San Joaquin County, where most of its officers resided and where all of its corporate records were kept. Attachment of the stock was sought to be effected by service on a proper corporate officer in San Joaquin County. The court held that, as the corporation carried on none of its activities and had no officer present at the place designated in the articles as its principal place of business, the attachment in San Joaquin County was valid. It said, in part:
"* * * The fiction that a corporation has its legal domicile at the place designated in its articles was created to accomplish justice in certain cases, not to defeat justice. When a legal fiction results in an absurdity it should be disregarded. * * *"
Respondents seek to apply this comment to the situation in the case at bar, but we think it is not applicable. The cases are not parallel. In the case at bar, the corporation maintains an office and a manufacturing plant at Foster, in Linn County, the place designated in its articles as its principal office and place of business, whereas in the Partch case the defendant had no office or place of business in Sacramento County, which its articles named as its principal place of business. The designation of Sacramento County, in the Partch case, was clearly a fictitious one, but the evidence *Page 614
in the instant case does not indicate that the Linn County designation was other than genuine and bona fide.
While we recognize the fact that sometimes there may be a real distinction between a corporation's principal office and its principal place of business, we think that, in the statutes under consideration, our legislature regarded the two terms as being synonymous. For example, section 77-210, O.C.L.A., refers to the place — not "places" — where the corporation proposes to have its principal office or place of business; section 77-204, O.C.L.A., as amended by chapter 401, Or. L. 1941, requires the articles to be recorded in the county — not "county or counties" — where the principal office or place of business is proposed to be located; section 77-205, O.C.L.A., as amended by chapter 301, Or. L. 1945, requires the corporation commissioner to issue an official certificate showing, inter alia, the location of the corporation's principal office, but makes no mention of its principal place of business; and section 77-211, O.C.L.A., as amended by chapter 183, Or. L. 1949, which provides for the adoption of supplementary articles for the purpose, among others, of changing the corporation's principal office or place of business, and requires that one original of such supplementary articles be filed with the county clerk "in the county where the corporation has its principal office", says nothing about the county where it has its principal place of business. The relator's articles, it may be noted, recite: "The principal office and place of business of the Corporation and its registered office shall be in the town of Foster, Linn County, State of Oregon."
The manufacture and sale of lumber is evidently *Page 615
the principal business of the corporation, and that business is conducted at Foster, in Linn County, where the corporation has its sawmill and an office, under the supervision of a plant manager. Its financing, and its internal affairs, are subsidiary to its principal business. There is no legal reason why the corporation may not, for its own convenience, maintain an office in Multnomah County. It may be that it is improper for it to keep its corporate records in that office, but the mere fact that it does so does not make that office its principal office or place of business. It would seem that the only lawful manner in which relator corporation may change its principal office or place of business is by adopting and filing supplemental articles of incorporation for that purpose. Section 77-211, O.C.L.A., as amended by chapter 183, Or. L. 1949. Until it does so, its residence, as established in good faith by its articles, remains at Foster, in Linn County, at least as long as it actually maintains an office and a place of business at that place.Holgate v. O.P.R.R. Co., supra (16 Or. 123, 125, 17 P. 859);Hildebrand v. United Artisans, 46 Or. 134, 79 P. 347; Daviesv. Oregon Placer Power Co., supra (61 Or. 594, 597,123 P. 906); United States Fidelity and Guaranty Company v. Lawrence,184 Ga. 83, 85, 190 S.E. 346; Dairymen's League Co-op. Assn.,Inc. v. Brundo, 131 Misc. 548, 227 N.Y.S. 203, 205; RossieIron-Works v. Westbrook, 59 Hun. 345, 13 N.Y.S. 141; State exrel. v. District Court, 191 Iowa 244, 182 N.W. 211. Cf., generally, cases cited in annotation, 175 A.L.R. 1092.
No legal rights of the plaintiff in the Jones case will be affected adversely by this holding. Mr. Jones may still bring his action, laying the venue thereof in Linn County, and may serve the corporation, through *Page 616
one of its principal officers, in that county, in Multnomah County, or anywhere else in the state. State ex rel. v.Updegraff, supra (172 Or. 246, 253, 141 P.2d 251). Justice, we should assume, will be accomplished equally by action in Linn County as by action in Multnomah County.
The demurrer to the return to the alternative writ of mandamus will be sustained, and a peremptory writ will issue in due course. *Page 617
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The brief filed by plaintiff in error contains the following statement:
"The judgment is not supported by law or evidence."
There is no specification of error, of which complaint is made, set out in the brief of the plaintiff in error, other than that the judgment is not supported by law or evidence. Presumably, this was an action on a contract, and the defendant, plaintiff in error here, contends that said contract was breached on the part of the plaintiff, defendant in error here, and for that reason the defendant is not liable. It is not pointed out in the brief wherein said contract was breached, and no authorities at all are cited to support the contentions of plaintiff in error, and under rule 26 of this court (87 Okla. xxiii, 165 Pac. ix) there is nothing presented to this court for review, and the appeal of this action should be dismissed. Henderson v. Todd, 91 Okla. 18, 215 P. 607; Hooker v. Rackley, 90 Okla. 83, 216 P. 151.
The plaintiff in error executed a supersedeas bond in this case in the sum of $500, with S.A. Brown as surety, which bond was duly approved as shown by a certified copy thereof attached to the case-made. *Page 240
The defendant in error has filed a motion herein for judgment against the surety on said supersedeas bond for the amount of the judgment rendered in said cause, and said motion is sustained and judgment is hereby entered against S.A. Brown, surety on said bond for the sum of $339.32, with interest at six per cent. from January 1, 1920, and the cost of said action, but in no event shall said judgment, interest, and cost exceed the sum of $500, and for which let execution issue.
By the Court: It is so ordered.
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Matter of Thomas M.-S. (2018 NY Slip Op 01133)
Matter of Thomas M.-S.
2018 NY Slip Op 01133
Decided on February 15, 2018
Appellate Division, First 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 on February 15, 2018
Friedman, J.P., Tom, Mazzarelli, Singh, JJ.
5724
[*1]In re Thomas M.-S., A Person Alleged to be a Juvenile Delinquent, Appellant. Presentment Agency
Tamara A. Steckler, The Legal Aid Society, New York (Raymond E. Rogers of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Melanie T. West of counsel), for presentment agency.
Order of disposition, Family Court, Bronx County (Sidney Gribetz, J.), entered on or about April 19, 2016, which adjudicated appellant a juvenile delinquent upon a fact-finding determination that he committed acts that, if committed by an adult, would constitute the crimes of attempted criminal sexual act in the first and third degrees, sexual abuse in the first and third degrees, attempted criminal sexual act in the third degree and attempted sexual misconduct, and placed him on probation for a period of 12 months, unanimously affirmed, without costs.
The court's finding was based on legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the court's credibility determinations. The victim's brief delay in reporting the incident, and the absence of corroborating medical evidence, were satisfactorily explained. We also note that, in its findings of fact, the court carefully explained that its dismissal of some counts of the petition was based on considerations that did not affect its conclusion that the victim's testimony was credible.
We have considered and rejected appellant's remaining argument.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 15, 2018
CLERK
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02-15-2018
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Suit by W.E. Robertson against Lydia Neubauer, Edwin W. Neubauer, and Elsa G. Neubauer, in the nature of a creditor's bill to set aside and vacate, as fraudulent, Lydia Neubauer's deeds to her son, Edwin Neubauer, and his wife, Elsa G. Neubauer, and charge the realty described in the deeds with payment of the unsatisfied portion of a judgment in favor of the plaintiff against the defendant Lydia Neubauer rendered in a suit foreclosing a mortgage on realty other than that described in deeds. From a decree dismissing plaintiff's complaint, the plaintiff appeals.
AFFIRMED.
On December 27, 1922, plaintiff loaned defendant, Lydia Neubauer, and her late husband, *Page 507
William Neubauer, the sum of $2,500, and took from them their promissory note therefor payable three years after date.
On said 27th day of December, 1922, defendant, Lydia Neubauer, and her late husband, in order to secure the payment of said promissory note in accordance with its terms, made, executed and delivered to plaintiff a mortgage upon lot 3, and north half of lot 4, block B, Milwaukie Park, Clackamas county, Oregon.
Subsequent to July 27, 1931, default was made in the payment of interest upon said note and mortgage. Negotiations were entered into for settlement. First, it was proposed that defendant, Lydia Neubauer, would convey to plaintiff other property than that which is described in said mortgage in full settlement and discharge of said note and mortgage to which plaintiff assented, and then plaintiff recanted; thereafter, it was proposed that said defendant, Lydia Neubauer, convey and transfer the mortgaged premises to plaintiff reserving a life estate therein; and then, it was proposed that such transfer be made subject to an estate for a term of years in full settlement and discharge of said mortgage. These proposals and counter proposals were unfruitful of an agreement, whereupon plaintiff instituted a suit to foreclose said mortgage. A judgment for plaintiff in the sum of $3,471.04, and decree of foreclosure was rendered; and sale of the mortgaged property upon execution was had. Upon said sale, $2,241 was realized for application upon said judgment under date of January 18, 1936. The remainder of said judgment aggregates $1,230.04, together with interest at the rate of seven per cent. per annum from January 18, 1936, of which no part has been paid. *Page 508
The deeds sought to be vacated and set aside were executed by defendant, Lydia Neubauer, as grantor, on the 30th day of October, 1935, and conveyed to defendants, Edwin W. Neubauer and Elsa G. Neubauer, husband and wife, lot 8, block 3, Kruse's Third Addition to the city of Gearhart Park in Clatsop county, Oregon, and lot 5 and south half of lot 4, block B, Milwaukie Park, Clackamas county, Oregon.
The question here is whether these deeds were executed with the intent to hinder and defraud plaintiff.
In support of his claim plaintiff calls attention to the relationship existing between the parties to said deed. The grantor is the mother of one, and the mother-in-law of the other grantee. Plaintiff also stresses the fact that the consideration claimed by defendants to have been the one for which said transfer was made was a debt against which the statute of limitations had run. Plaintiff likewise comments upon the absence of any written evidence of the existence of said consideration.
We have considered the record and find that it supports defendant's position. Sufficient earning capacity is shown on the part of Edwin W. Neubauer to have enabled him to make the advances as claimed. The passbook of the bank discloses the withdrawals he claims. His sister corroborates him in reference to the existence of the indebtedness to him from their parents.
While the testimony discloses that the father, now deceased, of Edwin W. Neubauer cashed the checks given him by the son, it also shows that the time the advances were made, the property in suit was owned by both the parents as tenants by the entireties; that each month, $40 was deducted from the checks to pay *Page 509
the board and lodging of the son, and that the mother, Mrs. Lydia Neubauer, expressly agreed to reimburse her son, Edwin W. Neubauer, for the advances he thus made to his parents.
A more detailed discussion of the facts would be of no value. We think that the deeds in suit were executed in good faith and for a valuable consideration.
The decree of the circuit court is affirmed.
It is ordered that neither party recover costs or disbursements on appeal.
BEAN, C.J., and RAND and ROSSMAN, JJ., concur. *Page 510
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For the reasons stated in the former opinion written by Mr. Justice BELT and concurred in by me, I dissent. *Page 178
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07-06-2016
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The Town of Bithlo, defendant in the trial court, is a municipal corporation existing under the general laws, without any special charter. Under date of March 2, 1923, the Mayor and City Clerk of the town issued a warrant in words and figures as follows: *Page 977
"TOWN OF BITHLO No. 51 STATE OF FLORIDA $311.60
Office of the City Clerk, March 2, 1923.
To the City Treasurer
Pay to the order of Barton Pittman (90 days after date) the sum of Three hundred and eleven 60/100 ________________________________ Dollars, in settlement of account for Salary, and charge the same to Salary, __________ Account.
M. M. Macy City Clerk
H. E. Trowbridge Mayor Endorsed in Blank on back as follows:
'Barton Pittman.' "
The warrant was endorsed by Barton Pittman. The plaintiff, Bank of Commerce, paid a valuable consideration to Barton Pittman for the warrant, and became a holder thereof without notice of any invalidity, other than such as might appear from the face of the warrant.
The Town Council of Bithlo never passed on any item of indebtedness in favor of Barton Pittman, never authorized the execution of the alleged warrant and never received from this plaintiff any consideration for it. On the date of the warrant the town was indebted to Barton Pittman in an amount equal to the face of the warrant, which sum has never been paid. The warrant was presented to the Town Treasurer, and payment refused. A judgment was entered for the plaintiff.
Municipalities can exercise only such powers as are legally conferred by express provision of law, or such as are by fair implication and intendment properly incident to or included in the powers expressly conferred for carrying *Page 978
out municipal purposes, and these functions can be exercised only through appropriate officers or agents duly clothed by authority of law. Liveris v. Harper, 89 Fla. 477, 104 South. Rep. 853; 19 R. C. L. 1066.
"A warrant is the command of the council, board, or official, whose duty it is to pass upon the validity and determine the amount of a claim against the municipality, to the treasurer to pay money out of any funds in the city treasury, which are or may become available for the purpose specified, to a designated person whose claim therefor has been duly adjudged and allowed." 2 Dillon on Municipal Corp. (5th ed.) 1283.
Under the provisions of Section 1828 of the Revised General Statutes of Florida, 1920, the council has vested in it the government of the municipality. Under the provisions of Section 1895, the government of the city can not make appropriations in any one year for a greater sum than is allowed to be collected by taxation, and it is unlawful for any officer of the municipal corporation to issue a warrant on the treasurer, except in payment of an appropriation. In this case no appropriation was made for the payment of the alleged indebtedness, evidenced by the warrant, and the governing body of the municipality did not authorize the issuance of the warrant.
It is well settled that warrants or drafts upon the treasurer of a municipal corporation can be issued only in the manner and for the purposes prescribed by law, and when they are issued for a purpose or in a manner not authorized by law they are void and cannot be collected. 19 R. C. L. 1036.
It follows that insomuch as Barton Pittman was concerned the warrant was not a valid obligation of the municipality. Insofar as this plaintiff is concerned it is evident *Page 979
that the warrant was not a negotiable instrument, and this plaintiff could not be an innocent holder for value before maturity without notice, as in the case of a negotiable instrument. If a warrant is illegally issued it can make no difference that it is in the hands of a purchaser for value without notice of any illegality or irregularity in the warrant, since it is well settled, by consideration of public policy, as well as a decided preponderance of authority, that warrants or orders drawn by one or more municipal officers upon another, in the disbursements of the funds of the municipality and payment of its indebtedness, are not to be regarded as negotiable or commercial paper cutting off equities against the corporation. 19 R. C. L. 1037; 2 Dillon on Munic. Corp. (5th ed.), 1295.
It therefore appears that the warrant is not a valid indebtedness of the municipality, and this plaintiff can not maintain an action on it against the defendant.
The judgment will be reversed.
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07-05-2016
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Matter of Damone H., Jr. (Damone H., Sr.) (2017 NY Slip Op 09023)
Matter of Damone H., Jr. (Damone H., Sr.)
2017 NY Slip Op 09023
Decided on December 22, 2017
Appellate Division, Fourth 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 on December 22, 2017
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.
1393 CAF 15-01880
[*1]IN THE MATTER OF DAMONE H., JR. ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES, PETITIONER-RESPONDENT; DAMONE H., SR., RESPONDENT-APPELLANT. (APPEAL NO. 2.)
DAVID J. PAJAK, ALDEN, FOR RESPONDENT-APPELLANT.
ELISABETH M. COLUCCI, BUFFALO, FOR PETITIONER-RESPONDENT.
DAVID C. SCHOPP, ATTORNEY FOR THE CHILD, THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (CHARLES D. HALVORSEN OF COUNSEL).
Appeal from an order of the Family Court, Erie County (Margaret O. Szczur, J.), entered July 24, 2015 in a proceeding pursuant to Family Court Act article 10. The order provided for 12 months' supervision of respondent by petitioner.
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the petition is dismissed.
Memorandum: In this proceeding pursuant to Family Court Act article 10, respondent father contends that petitioner failed to establish by a preponderance of the evidence that he neglected the subject child. We agree with the father, and we therefore reverse the order and dismiss the petition.
Petitioner alleged that the father inflicted excessive corporal punishment on the child. In particular, petitioner alleged that, on January 18, 2014, the child had two small bruises on his left temple, allegedly inflicted by the father. Additionally, petitioner alleged that, on March 19, 2014, the child sustained several scratches on his face, a bruise on his cheek, and several minor bruises and abrasions, also allegedly inflicted by the father. At the hearing on the petition, petitioner's caseworker testified that the child initially stated that he sustained a bruise in January 2014 while roughhousing with his siblings and, although he later gave inconsistent accounts of the incident, the child maintained that his father had not caused the injury. The caseworker further testified that in March 2014 he observed that the child had three scarlet marks on the right side of his face, a reddish mark on the left side of his face, and a small, reddish mark on his abdomen. When asked about those marks, the child stated that he had been in trouble at school, so the father struck him. According to the testimony of the father, he was called into the school by the child's teachers in March 2014 because the child was misbehaving. When the father stated that he was taking the child home, the child began running around the classroom. The father chased the child around the classroom and, in attempting to grab him, accidentally caught him in the face with his hand, causing the marks. The father further testified, consistent with the child's statement to the caseworker, that the child sustained a bruise in January 2014 while roughhousing with his siblings.
"[A] finding of neglect requires proof that the child's physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired' as a result of the parent's failure to exercise a minimum degree of care' " (Matter of Peter G., 6 AD3d 201, 203 [1st Dept 2004], appeal dismissed 3 NY3d 655 [2004], quoting Family Ct Act § 1012 [f] [i]; see Matter of Lacey-Sophia T.-R. [Ariela (T.)W.], 125 AD3d 1442, 1444 [4th Dept 2015]). [*2]Although the use of excessive corporal punishment constitutes neglect (see § 1012 [f] [i] [B]), a parent has the right to use reasonable physical force to instill discipline and promote the child's welfare (see Matter of Jaivon J. [Patricia D.], 148 AD3d 890, 891 [2d Dept 2017]). Here, we conclude that petitioner failed to establish that the father intentionally harmed the child or that his conduct was part of a pattern of excessive corporal punishment (see Matter of Nicholas W. [Raymond W.], 90 AD3d 1614, 1615 [4th Dept 2011]), and petitioner thus failed to meet its burden of establishing by a preponderance of the evidence that the child was in imminent danger (see Lacey-Sophia T.-R., 125 AD3d at 1445; see generally Nicholson v Scoppetta, 3 NY3d 357, 369 [2004]).
Entered: December 22, 2017
Mark W. Bennett
Clerk of the Court
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12-22-2017
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260 Ga. 779 (1991)
399 S.E.2d 922
GRAVES
v.
THE STATE.
S90A1660.
Supreme Court of Georgia.
Decided February 7, 1991.
Dorothy Williams, for appellant.
Douglas C. Pullen, District Attorney, E. Carlton Carter, Assistant District Attorney, Michael J. Bowers, Attorney General, Mary H. Hines, for appellee.
FLETCHER, Justice.
Jamie Lee Graves was convicted of malice murder, armed robbery and burglary. He was sentenced to concurrent terms of life imprisonment for murder and armed robbery, and a term of years for burglary.[1]
The victim, Kathryn Stryker, lived with her invalid mother, Wessie Jenkins, in the defendant's neighborhood in Columbus, Georgia. The defendant, who was 16 years old at the time of the crimes, often performed yard work and odd jobs for them.
When the victim's pastor was unable to reach her for several days, he asked the Muscogee County Sheriff's Department to investigate. A deputy sheriff found an accumulation of newspapers on the victim's front porch. Entering the house, he found Wessie Jenkins in her bedroom, gasping for breath. Several of Mrs. Jenkins' knuckles had been cut off and she was lying in a pool of blood.[2] The deputy then found the victim on the kitchen floor. The upper portion of her head had been completely beaten in, and a butcher knife was buried in her chest.
While interviewing the victim's neighbors, officers learned that the defendant had raked leaves for the victim on the last day the victim had been seen in the neighborhood. Hoping to establish the time of death, officers asked the defendant to come to the police station for an interview. According to the testimony of the interviewing *780 officer, the defendant made a number of inconsistent, but non-incriminating, statements about last seeing the victim and what he had done on that day. The officer terminated the interview and summoned the defendant's mother to the police station. When she arrived, the officer explained that the defendant had made conflicting statements about seeing the victim, and then advised the defendant and his mother of the defendant's Miranda rights. The mother stated that she would like to have the defendant's juvenile court service worker present. After the court service worker arrived, the police officer again administered the Miranda warnings. The defendant and his mother stated that they understood his rights. The defendant then told police that his friend, Jerome Bowden,[3] had stolen his pellet gun and used it to beat the victim. The defendant also stated that Bowden had stolen a number of items from the victim and given them to the defendant for safekeeping.
Executing a search warrant, police discovered a pellet gun hidden under the back porch of the defendant's house. A hair found on the gun was consistent with the victim's hair. Blood was found on the gun, but of an amount too small to type. Jewelry identified as belonging to the victim was discovered hidden throughout the defendant's house. Police also found a note pad inscribed with the victim's name hidden in a stove on the defendant's back porch. Later, police recovered a television which the defendant had sold to a friend shortly after the victim's death; a television repairman identified it by the serial number as a television he had repaired for the victim.
Medical evidence showed that the perpetrator dealt four severe blows to the victim's skull, causing it to split. The medical examiner testified that a pellet gun could have been the object used to inflict these injuries. The medical examiner also testified that multiple skull fractures caused the victim's death, and opined that she had been stabbed after she was dead.
The defendant testified that Jerome Bowden stole his pellet gun and used it to beat the victim to death. The defendant further testified that Bowden stabbed the victim because "he did not want her to suffer." The defendant denied participating in the murder, but admitted he had hidden the objects stolen from the victim for Bowden.
1. While conceding that a motion for mistrial is not ripe prior to impanelling the jury, Ferguson v. State, 219 Ga. 33 (3) (131 SE2d 538) (1963), the defendant argues that the trial court erred in denying his motion for mistrial made when a prospective juror stated, "I feel like [the defendant's] guilty," during voir dire.
*781 Following this statement the record shows that the trial court immediately instructed the prospective jurors to respond only to the district attorney's questions and not to make extraneous statements. The defendant then moved for a mistrial. The trial court did not rule on this motion, but called a bench conference which was not recorded. When voir dire resumed the state successfully moved to strike the juror in question for cause. The defendant did not ask for curative instructions or request that he be permitted to examine the other jurors to determine whether they had been influenced by this remark. Under these circumstances, we find no reversible error.
2. The defendant argues that his statement to the police was not voluntary because he was not adequately advised of his Miranda rights. As detailed above, the record demonstrates the contrary. The defendant was initially interviewed as a witness. After he made inconsistent statements, his mother and court service worker were summoned to the police station. He was advised of his Miranda rights twice prior to his statement that he knew the circumstances of the victim's death. Both times the defendant stated he understood his constitutional rights.
The trial court found the statement to be voluntary. This finding is not clearly erroneous.
3. The defendant maintains the trial court erred in charging the law of confession as he did not confess to the crimes charged. However, our study of the record shows that the trial court did not charge the law of confession.
4. The trial court did not err in admitting pre-autopsy photographs taken of the victim. These photographs were relevant to the nature of the victim's wounds and cause of death, and were therefore admissible. Ramey v. State, 250 Ga. 455, 456 (298 SE2d 503) (1983).
5. Construing the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found the defendant guilty of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 LE2d 560) (1979).
Judgment affirmed. All the Justices concur.
NOTES
[1] The crime was committed in October 1976. The defendant was indicted on November 23, 1976, and his trial began February 15, 1977. The state sought the death penalty, but the jury's verdict, rendered on February 17, 1977, did not recommend the death penalty. The defendant filed his notice of appeal on March 14, 1977. For reasons neither found in the record nor known by this court, the record was not filed in this court until September 21, 1990. Pursuant to order of this court entered on October 12, 1990, the transcript was prepared and filed in this court on November 16, 1990. The case was submitted on briefs on November 2, 1990.
[2] Mrs. Jenkins lingered for several weeks before dying, but was not able to tell police what had happened.
[3] Bowden was convicted of the murder of Kathryn Stryker and sentenced to the death penalty. Bowden v. State, 239 Ga. 821 (238 SE2d 905) (1977).
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I concur in the result. If the jury should have been instructed on the law applicable to the testimony of an accomplice, viz., Sec. 105-32-18, U.C.A. 1943, it is a sufficient answer to defendant's contention in that regard that there was no pointing out to the court of the omission to so instruct. Counsel, as an officer of the court, has the duty as a specialist on the case, which he should be, to point out a failure by the court to instruct on a salient material proposition of law. He is a back-stop in that regard. If he does not do so his client cannot afterward complain that the instructions were insufficient or incomplete.
However, I have a doubt as to whether the provisions of Sec. 105-32-18, U.C.A. 1943, should be brought to the attention of the jury. It certainly is for the court to say, in the first instance, whether there is corroborating evidence. If there is, the court will overrule a motion for nonsuit or for a directed verdict. But whether after that the court should instruct the jury, and thus place on it the sometimes difficult task of differentiating corroborating testimony from other testimony, presents to me a serious question. I recognize *Page 278
that a good argument may be made, based on the peculiar wording of the statute, that the jury may believe the accomplice and disbelieve the corroborating testimony and therefore convict only on the testimony of an accomplice. Since the case in this regard turns on the failure to point out to the court by registering an exception a claimed failure to instruct on a material part of the law of the case, I need only signify my doubt as to the other point in order that it will not be assumed that it escaped notice and, more important, that it will not be hereafter argued that by implication this court held that an instruction as to the necessity for corroborating evidence was necessary.
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The order of the court below discharging plaintiffs' rule for leave to amend the statement of claim in this action is clearly correct, and the judgment entered thereon is affirmed on the opinion of the learned court below.
Judgment affirmed.
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J-S04016-20
2020 PA Super 91
SPECTOR GADON & ROSEN, P.C. IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
RUDINSKI, ORSO & LYNCH AND JOSEPH
F. ORSO, III, ESQUIRE
Appellants No. 3661 EDA 2018
Appeal from the Judgment Entered January 24, 2019
In the Court of Common Pleas of Philadelphia County
Civil Division at No: 160700177
BEFORE: BENDER, P.J.E., STABILE, and MURRAY, JJ.
OPINION BY STABILE, J.: FILED APRIL 7, 2020
Appellants, Rudinski, Orso & Lynch, (“ROL”) and Joseph Orso, III,
Esquire, appeal from the January 24, 2019 judgment in favor of Appellee,
Spector Gadon & Rosen, P.C. (“SGR”). We vacate and remand for entry of
judgment in favor of Appellants.
According to the parties’ joint stipulation of facts, Mark Hazelton
retained SGR to represent him in an action against Shell Energy Holding GP,
LLC d/b/a SWEPI, LP (“SWEPI”) for damage to Hazelton’s crops resulting from
SWEPI’s construction of a natural gas pipeline across Hazelton’s farm. Joint
Stipulation, 6/21/18, at ¶¶ 5-7. The retainer agreement (the “Retainer”),
which commenced on February 7, 2013 and was amended on July 22, 2013,
provided that “any payment made by SWEPI, in connection with a judgment
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or settlement against SWEPI, LP, would be paid initially to [SGR] and, after
subtracting all outstanding fees and expenses then owed, we would pay the
remainder to [Hazelton].” Id. at ¶¶ 6-8.
Appellee Joseph Orso, III of Appellee ROL, entered his appearance for
Hazelton on October 7, 2014 and succeeded SGR as Hazelton’s counsel. Id.
at ¶ 11. Hazelton and SWEPI reached a settlement agreement on April 1,
2015 for $210,000.00. Id. at ¶¶ 12, 36. Orso received the settlement check
from SWEPI on April 21, 2015. He deposited the check into his Interest on
Lawyers Trust Account (“IOLTA”) account. Id. at ¶¶ 13-14. Orso wrote a
check to ROL for $4,200 and another check to Hazelton’s landlord. Id. at
¶ 15. Orso paid the remainder of the settlement funds, $191,766.13, to
Hazelton on April 22, 2015. Id. at ¶¶ 16, 36.
Subsequent to Orso’s entry of appearance and prior to settlement, SGR
sent to Orso a copy of the Retainer and SGR’s outstanding invoices for services
performed on Hazelton’s behalf. Id. at ¶¶ 18-21. SGR and ROL did not enter
a written agreement regarding the handling of any settlement or judgment.
Id. at ¶ 33. As of April 22, 2015, when he disbursed the settlement proceeds
to Hazelton, Orso was aware that SGR’s outstanding invoices to Hazelton
remained unpaid. Id. at ¶ 22. Orso did not notify SGR of the settlement
between Hazelton and SWEPI. Id. at ¶ 24. He filed the praecipe to settle and
discontinue Hazelton’s action against SWEPI on June 17, 2015. Id. at ¶ 29.
Hazelton did not compensate SGR for its services. SGR filed suit against
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Hazelton and obtained a judgment of $68,660.35, including prejudgment
interest. Id. at ¶¶ 30-32. That judgment remains unsatisfied. Id. at ¶ 32.
On July 6, 2016, SGR commenced this action with a complaint in
conversion against ROL and Orso. ROL and Orso filed an answer and new
matter on February 7, 2017. The trial court denied SGR’s summary judgment
motion on October 11, 2017, and the parties proceeded to an October 10,
2018 trial on stipulated facts. The trial court entered a judgment in favor of
SGR for $68,660.35. Appellants filed a timely post-trial motion, and the trial
court denied relief on November 14, 2018. This timely appeal followed.
Appellants raise a single issue for our review:
Whether the trial court improperly held the Appellants liable
on conversion as there is no legal authority for holding the
Appellants liable for following the instructions of the client and no
written agreement existed between the parties?
Appellants’ Brief at 4.
Because the parties stipulated to the facts, our only task on review is to
determine whether the trial court committed an error of law in holding
Appellants liable in conversion. Our standard of review is de novo. Stephan
v. Waldren Elec. Heating and Cooling, LLC, 100 A.3d 660, 664-65 (Pa.
Super. 2014).
Conversion is defined as the deprivation of another’s right
of property in, or use or possession of, a chattel, or other
interference therewith, without the owner’s consent and without
lawful justification. When such an act occurs, the plaintiff may
bring suit if he had an immediate right to possession of the chattel
at the time it was converted.
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Bank of Landisburg v. Burruss, 524 A.2d 896, 898 (Pa. Super. 1987)
(internal citations and quotation marks omitted), appeal denied, 532 A.2d
436 (Pa. 1987). Money can be the subject of conversion. Shonberger v.
Oswell, 530 A.2d 112, 114 (Pa. Super. 1987).
The trial court relied on this Court’s reasoning in Bernhardt v.
Needleman, 705 A.2d 875 (Pa. Super. 1997), in which the plaintiff attorney
referred a case to the defendant attorney’s firm in exchange for a referral fee.
The parties agreed to 40% of the 40% contingent fee the defendant attorney
would receive upon successful resolution of the case. Id. at 876. When the
defendant failed to pay, the plaintiff sued for breach of contract and
conversion. Id. In explaining its basis for holding the defendant liable for
conversion, this Court cited the Official Comment to Rule 1.5 of the Rules of
Professional Conduct explaining that division of fees commonly occurs
between a referring attorney and a trial specialist. Pa.R.P.C. 1.5, comment.
The Bernhardt Court concluded that the Official Comment language
supported a conclusion that the referring attorney and the specialist both have
a property right in the fee. Id. at 878-79. Thus, “once a fee has been
received, the referral fee can be the subject of a conversion.” Id. at 879.
The trial court also relied on Burruss, in which the plaintiff bank lent
the defendant farmers money to purchase cattle. The plaintiff seller, who
guaranteed the loan, retained a security interest in the cattle. The security
agreements entitled the seller to retake possession if the cattle were sold
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without his consent. He filed the appropriate financing statements with the
Cumberland County Prothonotary. Shortly thereafter, the farmers hired the
defendant livestock broker to sell the cattle. The broker did so, unaware of
the seller’s security interest and without searching for one. The bank filed a
conversion action against the farmers (who disappeared), the broker, and the
broker’s principal. See id. at 897-99.
This Court, relying on decisions from other states and federal courts
interpreting Pennsylvania law, concluded the broker committed a conversion
because it intentionally, if unknowingly, interfered with the seller’s secured
property right in the cattle. Id. at 899. Absent unusual circumstances not
applicable in Burruss (and not relevant instantly), good faith is not a defense
to a conversion. Id. at 899-900. The Burruss Court also noted that § 9307
of the Pennsylvania Uniform Commercial Code excludes buyers of farm
products from its general rule that a buyer in the ordinary course of business
takes the product free of any security interest. Id. at 900-01 (citing 13
Pa.C.S.A. § 9307). Further, the broker’s principal was liable in conversion
because he personally arranged all aspects of the sale without searching for a
security interest in the cattle. Id. at 901.
Relying on the principles set forth in the foregoing case law, the trial
court reasoned that SGR, based on the Retainer, had a property interest in
the settlement funds from the action between Hazelton and SWEPI. Orso’s
transfer of the funds directly to Hazelton therefore deprived SGR of its
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property. The court noted that SGR made Orso aware of its interest. Further,
Orso’s belief that he was obligated to transfer the money to Hazelton upon
request was not sufficient to relieve Orso of liability for conversion. Trial Court
Opinion, 8/1/19, at 6.
We conclude these cases are distinguishable and do not support the trial
court’s conclusion. Burruss is distinguishable because the plaintiff had a
security interest in the cattle and because § 9307 of the UCC protects creditors
in the case of sales of farm goods. The seller was entitled to the entire
purchase price of the cattle by virtue of his security interest. In Bernhardt,
the parties had a referral fee agreement and therefore their dispute related
only to the fee, not the entire settlement. The defendant attorney, not the
client, was obligated to split the fee in accord with the agreement. In both
Bernhardt and Burruss, the defendant’s conduct fully and finally deprived
the plaintiff of the opportunity to recoup its money. They are distinguishable
because neither case involved a third party who was obligated to compensate
the plaintiff for services rendered, as is the case presently.
More on point is Fowkes v. Shoemaker, 661 A.2d 877 (Pa. Super.
1995), appeal denied, 674 A.2d 1072 (Pa. 1996), which involved an action
between attorneys who successively represented the same client in the same
action. The second attorney’s retainer provided that he would retain 33 1/3%
of any settlement or verdict, rather than his customary 40%, in order to offset
the fees the plaintiff would owe to her prior attorneys. Id. at 879. The plaintiff
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received a settlement of more than $4.2 million, from which the successor
attorney took his 33 1/3% fee. Id. The original attorney did not receive
payment and sought recovery in quantum meruit against the successor. Id.
This Court held as follows: “[A]n attorney, who initially represented a client
and is dismissed, does not have a quantum meruit action against the attorney
who ultimately settles the case. […] [T]he initial attorney may have a valid
quantum meruit case against the client as of when the attorney was
terminated.” Id. (citing Styer v. Hugo, 619 A.2d 347 (Pa. Super. 1993),
affirmed per curiam, 637 A.2d 276 (Pa. 1994)). The Fowkes Court also
noted that the agreement between the plaintiff and the successor attorney
anticipated that the plaintiff would pay the original attorney’s fees. Id. at
879.
In Styer, three attorneys represented the plaintiff in succession. The
first and second attorneys (Styer and Brill, respectively) arrived at a fee
sharing agreement, but no such agreement existed between Styer and Hugo,
the client’s third lawyer. Hugo settled the case and took his contingent fee in
accord with his retainer. Hugo reimbursed Styer for out of pocket costs but
did not share any portion of the fee with him. Styer filed an unjust enrichment
action seeking recovery in quantum meruit. The trial court found in Styer’s
favor. Styer, 619 A.2d at 347-49.
This Court reversed. After analyzing the principles of unjust enrichment
and the circumstances of the case, the Styer Court concluded that Hugo was
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not unjustly enriched, and that Styer failed to protect his own right to
compensation. Id. at 351-52.
In sum, the reason Styer has not been paid is that he first
failed to avail himself of the right to compensation from the
[client] that the law provided him, and then relied on his
agreement with Brill, which through no fault of Hugo’s, ultimately
yielded Styer nothing. See Meehan [v. Cheltenham Twp., 189
A.3d 593 (Pa. 1963)], supra (where a party inadequately protects
its right to compensation from the direct recipient of its services,
it cannot thereafter seek restitution against one indirectly
benefited by those services who in no way induced the provision
of services).
Id. at 352.
Here, as in Fowkes and Styer and unlike Bernhardt, SGR did nothing
that legally protected its right to recover from another attorney handling the
case. We recognize that a conversion action is legally distinct from an unjust
enrichment action, but we believe the underlying principle of Fowkes and
Styer—that the former attorney’s right of recovery lies against the client and
not against the successor attorney—applies with equal force here. Further,
as we explained above, the circumstances of this case are distinct from those
in which our courts have permitted recovery in conversion. In this case, we
have a third party—Hazelton—who was obligated1 to compensate the plaintiff
for services rendered. To hold Appellants liable for conversion here would be
to impose upon them a duty to presume that Hazelton would breach his
____________________________________________
1 We express no opinion on whether Hazelton was obligated by express
contract or by contract implied in law, as in Styer and Fowkes.
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obligation to SGR. We find no authority in the law for imposing such a duty.
And while SGR was clearly entitled to a portion of Hazelton’s recovery from
SWEPI, Appellants’ conduct did not fully and finally deprive Appellant of the
funds. On the contrary, Appellants provided Hazelton the funds he could use
to compensate SGR for services rendered. Appellants are not liable in
conversion for Hazelton’s subsequent breach.
Furthermore, we find SGR’s reliance on Rule 1.15(f)2 of the Rules of
Professional Conduct unavailing. In addition to the fact that the Rules of
Professional Conduct do not create causes of action, nothing in the parties’
joint stipulation of facts supports a conclusion that the Hazelton/SWEPI
settlement funds were in dispute as of the date on which Orso disbursed the
funds to Hazelton. The settlement was more than sufficient to compensate
SGR for the value of its services—presumably, the amount of the judgment
eventually won against Hazelton.
____________________________________________
2 The Rule, which governs safekeeping of property, provides as follows:
(f) When in possession of funds or property in which two or
more persons, one of whom may be the lawyer, claim an interest,
the funds or property shall be kept separate by the lawyer until
the dispute is resolved. The lawyer shall promptly distribute all
portions of the funds or property, including Rule 1.15 Funds, as to
which the interests are not in dispute.
Pa.R.P.C. 1.15(f) (emphasis added).
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For all of the foregoing reasons, we vacate the judgment in favor of
Appellee, Spector Gadon & Rosen, P.C. and remand for entry of judgment in
favor of Appellants, Rudinsky, Orso & Lynch and Joseph Orso, III, Esquire.
Judgment vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/7/2020
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J-S04018-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ADOPTION OF J.A.T., A : IN THE SUPERIOR COURT
MINOR : OF PENNSYLVANIA
:
:
APPEAL OF: D.D.H., FATHER :
:
:
:
: No. 2816 EDA 2019
Appeal from the Order Entered September 13, 2019
In the Court of Common Pleas of Montgomery County
Orphans' Court at No: No. 2019-A0040
BEFORE: BENDER, P.J.E., STABILE, J., and MURRAY, J.
MEMORANDUM BY STABILE, J.: FILED APRIL 7, 2020
D.D.H. (“Father”) appeals from the order entered September 13, 2019,
which terminated involuntarily his parental rights to his son, J.A.T., born in
April 2017 (“Child”).1 We affirm.
The Montgomery County Office of Children and Youth (“OCY”) became
involved with the family on February 1, 2018, when Mother brought Child to
the Pottstown Office of OCY and stated that she was homeless and looking for
resources. N.T., 8/6/19, at 6-7. Due to a previous history with OCY, Mother
was urine screened, and tested positive for methamphetamine, amphetamine,
and tetrahydrocannabinol (“THC”). Id. at 7. The identity and whereabouts
of Child’s father were unknown. N.T., 9/12/19, at 15-16. Due to Mother’s
____________________________________________
1 That same day, the court terminated involuntarily the parental rights of
L.S.D.T. (“Mother”). Mother has not appealed the order and has not filed a
brief in the instant appeal.
J-S04018-20
homelessness, substance abuse, and lack of appropriate caretakers, OCY
obtained an order for emergency protective custody of Child. N.T., 8/6/19, at
7. Following a shelter care hearing on February 2, 2018, Mother did not
maintain contact with OCY and her whereabouts were unknown. Id. at 9-10,
24-25. In July 2018, Father was identified as a putative father of Child,
ordered to undergo paternity testing, and later confirmed to be Child’s
biological father. N.T., 9/12/19, at 16-17.
Family service plans were created for the family on February 12, 2018;
August 12, 2018; and February 8, 2019. N.T., 8/6/19, at 21-22. At a
permanency review hearing on August 16, 2018, the court found that Father
was making no compliance with the permanency plan, denied paternity of
Child, and did not present as a resource for Child. Order, 8/20/18, at 1. At a
permanency review hearing on November 8, 2018, the court found that Father
was making minimal compliance with the permanency plan and had begun
visiting with Child. Order, 11/9/18, at 1. Following that hearing, specific
family service plan goals were identified for Father, and included maintaining
a relationship with Child; keeping in contact with OCY; updating OCY regarding
housing; providing pay stubs; and avoiding positive drug screens. N.T.,
9/12/19, at 23. At a permanency review hearing on February 14, 2019, the
court found that Father was in minimal compliance with the permanency plan
and, although Father had continued visitation, he indicated that he was not
able to be a resource for Child. Order, 2/15/19, at 1.
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On March 22, 2019, OCY filed a petition to terminate involuntarily
Father’s parental rights to Child pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2),
and (b).
The court held hearings on the petition on August 6, 2019, and
September 12, 2019. OCY presented the testimony of Clare Henderson,
formerly an OCY supervisor at the Pottstown intake unit; Brenda Michael,
program manager at Friendship House; Krystal Dukes, OCY casework
supervisor for the Pottstown office; D.L., legal father of Child;2 Lori Ann Heath,
formerly the ongoing OCY caseworker for Child; and Susan Rhoads, the
adoption caseworker assigned to Child. Father, represented by counsel,
testified on his own behalf via telephone. Child was represented during the
duration of the case by Robert Angst, Esquire, as legal counsel; at the final
hearing, Child was represented by Eileen Schaefer, Esquire, as legal counsel.
Lori Heath testified that she was the ongoing caseworker for Child. N.T.,
9/12/19, at 15-16. During the first few months of the case, OCY was not
aware of the identity of Child’s father. Id. at 16. Family members of Child’s
mother suggested that Father might be the biological father of Child, and,
after an Accurint search, Father was found. Father participated in a paternity
____________________________________________
2 D.L. was identified as the legal father of Child on the birth certificate, but
was later excluded as the biological father of Child by paternity testing. N.T,
9/12/19, at 3-12. D.L. prepared a petition to voluntarily relinquish his
parental rights to Child, which was accepted at the September 12, 2019
hearing. Id.
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test, which confirmed his paternity. Id. Father lived in Wisconsin, although
OCY did not have an exact address for him at that time. Id. at 17.
Ms. Heath testified that paternity was established in July 2018 and
Father began visiting in October 2018. Id. Ms. Heath stated that Father
indicated to her that he had not been involved with Child because Mother’s
family had called Father and said Mother had miscarried. Id. at 26. Thus,
Father claimed he had not known about Child until OCY made contact. Id. at
26. However, Ms. Heath acknowledged that there were conflicting stories
within Mother’s family, as her sister stated that was not true. Id. at 26.
Regardless, Mother and Father did not have a long-term relationship. Id.
Initially, Father requested visits every other week since he was
travelling from Wisconsin. Id. at 17. Father visited on October 15, 2018;
October 30, 2018; and November 9, 2018, for an unconfirmed visit. Id. at
17-18. At the October 15, 2018 visit, Father discovered that Mother’s sister
was visiting with her child at the same time, and had to be repeatedly pulled
out of that visit room. Id. at 28. Ms. Heath took a urine screen from Father
at the November 8, 2018 permanency review hearing, and it was positive for
THC. Id. at 20-21. Father acknowledged that he had smoked marijuana. Id.
at 21. At each of the visits, Father indicated a different living situation from
the original address that had been considered for the interstate compact. Id.
at 22-23. After the third visit, family service plan goals were provided for
Father, namely, to maintain a relationship with Child, keep in contact with
OCY, and to update OCY regarding Father’s housing. Id. at 23. Father was
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also to provide Ms. Heath with pay stubs to prove employment, and to avoid
positive drug screens. Id. at 23.
Father was supposed to attend a visit on November 27, 2018, but
emailed Ms. Heath the day before to cancel. Id. at 18. Ms. Heath testified
that, after Father’s cancellation, she texted back and forth with him over the
next few days, but he did not confirm a visit. Id. at 19. Ms. Heath sent Father
a letter on December 5, 2018, asking him to schedule a visit; Father did not
reply until December 14, 2018, asking about visits. Id. Ms. Heath testified
that, based on the wording of the email, she did not believe the email was
written by Father. Id. Ms. Heath asked to speak to Father on the phone, but
did not receive a reply. Id. Ms. Heath believed the email was written by
Father’s significant other, and they were stating that they had split up, and
Father would still like to have visits. Id. Ms. Heath did not hear from Father
again until January 9, 2019; Father gave her a home address but did not
schedule a visit. Id. Ms. Heath re-sent the December 5, 2018 letter to the
new address, but did not receive a response. Id. at 20. On January 11, 2019,
Ms. Heath received a text from Father stating that he would not be able to
care for Child. Id. at 20. Father indicated he was between homes and had
lost his job, and did not feel he would be able to care for Child. Id. After that
text, Ms. Heath did not receive any further contact from Father. Id.
Ms. Heath testified that, throughout the history of the case, Father made
no progress on his goals. Id. at 23-24. Specifically, once Father was given
goals, there was no further contact from him. Id. at 24. Ms. Heath did not
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believe that Child had a bond with Father; Child did not seem to recognize
Father at the third visit. Id. at 24. Ms. Heath believed it was in Child’s best
interest to be adopted. Id. Child has taken to the family very well, is bonded
with both parents, and has become part of the family. Id.
Brenda Michael testified that she is the program manager of Friendship
House, through which Child was placed into foster care in May 2019. N.T.,
8/6/19, at 14-15. Child is in a pre-adoptive placement with a same-sex
married couple in Collegeville, and is adjusting well to their home. Id. at 15.
Prior to Child’s pre-adoptive placement, he was placed with a previous foster
family, with whom he is still in contact. Id. at 18. Child has transitioned well
from foster home to foster home. Id. Child is loving and affectionate with
both of his foster mothers, who are engaging and nurturing to him. Id. at 16.
Child, who was two years old at the time of the hearing, was well ahead of the
development curve and showing some athletic ability. Id. at 19.
No visitation has occurred with Child’s birth family members since Ms.
Michael became involved with the case, nor has any contact or outreach
occurred from either birth parent. Id. at 16-17. Ms. Michael testified that it
was her belief that it was in the best interest of Child to be adopted; Father
made a few visits at the end of last year, but indicated that he could not be a
resource for Child. Id. at 17. Child needs permanency and is with a family
willing to provide that for him. Id.
Father testified that once he discovered he had a son, he attempted to
arrange visits with Child. N.T., 9/12/19, at 41. Father requested that the
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court not terminate his parental rights because he is a hardworking father, he
is trying, and had recently broken up with the woman he was seeing. Id.
Father testified that he is trying to “get everything under control.” Id. at 41-
42. Father testified that he loved Child from the moment he found out about
him and has been trying to be in contact or “at least” visit. Id. at 42. Father
stated he recently acquired his own housing, is working, and has family
support from his mother and aunt. Id. Father claimed that he could take
Child in about a week as he has clothes, a place for Child to sleep and “all [he]
really need[s] is baby food.” Id. at 43.
Father admitted that he had not had any contact with Child since
November 2018, either in person, by phone, or on FaceTime, although Father
stated he had spoken with an adoption worker named Sue.3 Id. Father
admitted that he had not sent Child any gifts or cards for his birthday or the
holidays, had not paid child support, and was not sending food or clothing to
care for Child. Id. at 44. Father stated that his girlfriend answered his phone.
Id. at 44-45. Father stated that sometime in August 2019 he had emailed
Ms. Rhoads his new address and phone number along with his mother’s phone
number. Id. at 45.
Susan Rhoads testified that she is Child’s adoption caseworker. N.T.,
9/12/19, at 50-51. She established email contact with Father in March 2019,
when she was writing a child profile for Child and needed family background
____________________________________________
3 “Sue” was Susan Rhoads, Child’s adoption caseworker.
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information. Id. at 51. In June 2019, Ms. Rhoads let Father know of the
impending hearing and to get an idea of what Father’s position was; she did
not get much of a response and long periods of time would go by between
responses. Id. Ms. Rhoads emailed Father following the August 6, 2019
hearing to inform him that the hearing had been continued, and sent him a
copy of the notice that had been mailed to the address provided. Id. Father
replied that he had received the notice. Id. At that same time, Ms. Rhoads
asked Father if he would like counsel for the proceedings, and Father did not
respond. Id. at 52. At one point, Father asked what he could do to get Child
back, but he did not request more visits. Id. Ms. Rhoads reached out to
counsel for OCY to have an attorney appointed just in case. Id. at 52-53.
At the conclusion of the hearing, the court terminated Father’s parental
rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), and (b), and changed
Child’s permanent placement goal to adoption, 42 Pa.C.S.A. § 6351. Father
timely filed a notice of appeal from the termination of his parental rights and
a statement of errors complained of on appeal pursuant to 1925(a)(2)(i) and
(b).
On appeal, Father raises the following issue for our review:
1. The [t]rial [c]ourt erred in finding clear and convincing evidence
existed to terminate [Father’s] parental rights under 23
Pa.C.S.[A.] Section 2511(a).
Father’s Brief at 4.
We review cases involving the termination of parental rights according
to the following standards.
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The standard of review in termination of parental rights cases
requires appellate courts to accept the findings of fact and
credibility determinations of the trial court if they are supported
by the record. If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
or abused its discretion. A decision may be reversed for an abuse
of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. The trial
court’s decision, however, should not be reversed merely because
the record would support a different result. We have previously
emphasized our deference to trial courts that often have first-hand
observations of the parties spanning multiple hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (internal citations and quotations
omitted).
Termination requires a bifurcated analysis:
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. 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.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted).
We thus turn to the trial court’s order terminating Father’s parental
rights pursuant to 23 Pa.C.S.A. § 2511(a) and (b). The trial court terminated
Father’s parental rights pursuant to 23 Pa.C.S.A. § 2511(a)(1), (2), and (b).
We have long held that, in order to affirm a termination of parental rights, we
need only agree with the trial court as to any one subsection of Section
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2511(a), as well as Section 2511(b). In re B.L.W., 843 A.2d 380, 384 (Pa.
Super. 2004) (en banc). We focus our analysis on 23 Pa.C.S.A. § 2511(a)(1)
and (b).
The relevant subsections of 23 Pa.C.S.A. § 2511 provide:
(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.
***
(b) Other considerations.--The court in terminating the rights
of a parent shall give primary consideration to the developmental,
physical and emotional needs and welfare of the child. The rights
of a parent shall not be terminated solely on the basis of
environmental factors such as inadequate housing, furnishings,
income, clothing and medical care if found to be beyond the
control of the parent. With respect to any petition filed 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.
With regard to Section 2511(a)(1), this Court has observed that
To meet the requirements of this section, “the moving party must
produce clear and convincing evidence of 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) (citing In re
Adoption of R.J.S., 901 A.2d 502, 510 (Pa. Super. 2006)). The
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court must then consider “the parent’s explanation for his or her
conduct” and “the post-abandonment contact between parent and
child” before moving on to analyze Section 2511(b). Id. (quoting
In re Adoption of Charles E.D.M., 550 Pa. 595, 708 A.2d 88,
92 (1998)).
This Court has explained that a parent does not perform his or her
parental duties by displaying a “merely passive interest in the
development of the child.” In re B.,N.M., 856 A.2d 847, 855 (Pa.
Super. 2004), appeal denied, 582 Pa. 718, 872 A.2d 1200 (2005)
(quoting In re C.M.S., 832 A.2d 457, 462 (Pa. Super. 2003),
appeal denied, 580 Pa. 687, 859 A.2d 767 (2004)). Rather,
“[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.” Id. (citation
omitted).
In re J.T.M., 193 A.3d 403, 409 (Pa. Super. 2018).
With regard to Section 2511(b), “the court must take into account
whether a bond exists between child and parent, and whether termination
would destroy an existing, necessary and beneficial relationship.” Z.P., 994
A.2d at 1121. The court is not required to use expert testimony, and social
workers and caseworkers may offer evaluations as well. Id. Ultimately, the
concern is the needs and welfare of a child. Id.
We have stated:
[b]efore granting a petition to terminate parental rights, it is
imperative that a trial court carefully consider the intangible
dimension of the needs and welfare of a child—the love, comfort,
security, and closeness—entailed in a parent-child relationship, as
well as the tangible dimension. Continuity of the relationships is
also important to a child, for whom severance of close parental
ties is usually extremely painful. The trial court, in considering
what situation would best serve the child[ren]’s needs and
welfare, must examine the status of the natural parental bond to
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consider whether terminating the natural parents’ rights would
destroy something in existence that is necessary and beneficial.
Z.P., 994 A.2d at 1121 (quoting In re C.S., 761 A.2d 1197, 1202 (Pa. Super.
2000)). The trial court may equally emphasize the safety needs of the child
and may consider intangibles, such as the love, comfort, security, and stability
the child might have with the foster parent. See In re N.A.M., 33 A.3d 95,
103 (Pa. Super. 2011); see also In re K.Z.S., 946 A.2d 753, 763 (Pa. Super.
2008) (court may emphasize the safety needs of child). Where there is no
evidence of a bond between the parent and child, it is reasonable to infer that
no bond exists. Id. “[A] parent’s basic constitutional right to the custody and
rearing of . . . her child is converted, upon the failure to fulfill . . . her parental
duties, to the child’s right to have proper parenting and fulfillment of [the
child’s] potential in a permanent, healthy, safe environment.” In re B.,N.M.,
856 A.2d 847, 856 (Pa. Super. 2004) (internal citations omitted).
In this case, we do not review the order pursuant to Section 2511(b)
because Father did not preserve the issue in his concise statement of errors
complained of on appeal, nor in his statement of questions involved in his brief
on appeal. See Krebs v. United Refining Company of Pennsylvania, 893
A.2d 776, 797 (Pa. Super. 2006) (holding that an appellant waives issues that
are not raised in both his concise statement of errors complained of on appeal
and the statement of questions involved in his brief on appeal); see also In
re W.H., 25 A.3d 330, 339 n.3 (Pa. Super. 2011) (stating failure to include
argument/discussion in brief as to issue results in waiver of that claim) and
In re M.Z.T.M.W., 163 A.3d 462, 465-66 (Pa. Super. 2017) (same).
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With regard to Section 2511(a)(1), Father argues that he was not aware
of Child’s existence until July 2018 and immediately began making
arrangements to travel from Wisconsin to Pennsylvania to establish a
relationship with Child. Father’s Brief at 6-7. Father notes that he visited
Child three times over the next two months, and also attended a court hearing.
Id. Father contends that he contacted OCY several times to set up visits in
November 2018, and asked about visits in December 2018 and January 2019.
Id. Father argues that he was not able to perform his parental duties because
he was unaware of Child, and was not prepared to perform his parental duties,
but should not be denied the opportunity now. Id.
The record is clear that, for six months prior to the filing of the
termination petition, Father failed to perform parental duties. The relevant
time period begins September 22, 2018. It is possible that Father was
unaware of Child’s existence until July 2018. It is true that Father visited with
Child three times in October 2018 and November 2018. However, as the trial
court observed,
[Child] has never been in the custody of [Father]. When [Child]
was 15 months old, [Father] was identified as [Child’s] birth father
after taking a paternity test. Another man was listed as the father
on the birth certificate of [Child].
[Father] was a resident of Wisconsin when he learned in July 2018
that he was the birth father of [Child]. With the goal of obtaining
custody of [Child] through an interstate compact, [Father] agreed
to comply with the terms of [an FSP].
[Father] was unable to work on the interstate compact because
he did not have a definite address. He made no progress on his
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FSP goals involving maintaining a relationship with [Child],
providing OCY with his pay stubs, clean urine screens, and
consistent contact with OCY regarding his housing updates.
Initially, [Father] requested biweekly visits due to the travel
distance from his Wisconsin residence. He visited [Child] on
October 15, 2018, and again on October 30, 2018. In connection
with [Father]’s attendance at a Permanency Review Hearing,
[Father] last visited with [Child] on November 8, 2018. During
that visit, [Father] provided a urine screen that was positive for
THC. [Father] cancelled his scheduled November 27, 2018 visit
by notice of an email on November 26, 2018.
Subsequent contacts with OCY by [Father] were sporadic, most
often in the form of emails that were never followed-up with phone
calls, as requested. In his January 11, 2019 text to OCY, [Father]
admitted that he was unable to care for [Child] because he was
in-between homes and in-between jobs.
Since learning that he was the birth father of [Child], [Father]
provided no child support, clothing or food for [Child]. [Father]
has not given [Child] gifts, or even cards, for his birthday or
holidays. [Father] has had no contact with [Child] since his
November 8, 2018 visit, despite the available use of phone calls
or face time.
Trial Court Opinion, 10/15/19, at 3-4 (internal citations to the record omitted).
These observations are supported by the record. Despite three visits, Father
made no other efforts to perform parental duties or even to contact Child
during the relevant time period. See, e.g., J.T.M., 193 A.3d at 409.
Accordingly, we examine Father’s explanation for his failure. Here, the
trial court noted that Father did not provide credible testimony regarding his
lack of support and contact with Child during the six-month period prior to the
filing of the petition but, instead, focused on his efforts to prepare for future
custody of Child. Trial Court Opinion, 10/15/19, at 4. The record supports
this conclusion. Father implied that his life had gotten out of control and that
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he had recently lost a job and housing, but never gave further explanation as
to why he failed to comply with his FSP goals or even to attempt to contact
Child. As this Court has observed, parental 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.” B.,N.M., 856 A.2d at 855.
Here, despite Father’s argument that he should be allowed to perform parental
duties now, there is no evidence that he attempted to perform parental duties
in any significant manner prior to the filing of the petition. Additionally, the
record established that outside of the three visits discussed earlier, there was
no post abandonment contact whatsoever with Child, only vague attempts to
schedule visits with caseworkers that never finalized.
Finally, the court appropriately concluded that, based upon the
testimony provided, there was no bond between Child and Father. Trial Court
Opinion, 10/15/19, at 5. Child did not even recognize Father by the third visit,
and there was credible testimony provided that Child was bonded with his
foster mothers, is an integral part of their family, and is thriving in his
placement. Caseworkers testified that it was in Child’s best interest to be
adopted.
Consistent with the foregoing, we conclude that the evidence supports
the termination of Father’s parental rights pursuant to Section 2511(a)(1).
Father failed to perform parental duties for six months prior to the filing of the
petition, did not provide an adequate explanation for his conduct, had minimal
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post-abandonment contact with Child. Accordingly, the court did not err in
terminating Father’s parental rights involuntarily pursuant to 23 Pa.C.S.A. §
2511(a)(1) and (b).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/7/2020
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J-S04015-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GARY THOMPSON :
:
Appellant : No. 992 EDA 2019
Appeal from the PCRA Order Entered February 28, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001679-2015
BEFORE: BENDER, P.J.E., STABILE, J., and MURRAY, J.
MEMORANDUM BY BENDER, P.J.E.: FILED APRIL 7, 2020
Appellant, Gary Thompson, appeals from the post-conviction court’s
February 28, 2019 order denying his petition filed under the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant solely contends that
his trial counsel acted ineffectively by not filing a direct appeal on his behalf.
After careful review, we are compelled to vacate the court’s order and remand
for further proceedings.
In November of 2016, Appellant and three co-defendants proceeded to
a non-jury trial on charges relating to the robbery of a man on a Philadelphia
street in January of 2015. At the close of trial, the court convicted Appellant
of aggravated assault, robbery, conspiracy, and related offenses. On February
10, 2017, he was sentenced to an aggregate term of 3½ to 7 years’
incarceration, followed by 2 years’ probation. He did not file any post-
sentence motions, or a direct appeal.
J-S04015-20
On August 10, 2017, Appellant filed a pro se PCRA petition. Counsel
was appointed and an amended petition was filed on his behalf. Therein,
Appellant claimed that he asked his trial counsel, Judge Hall, Esq., to file a
post-sentence motion and a direct appeal, but Attorney Hall ineffectively failed
to do so. On September 10, 2018, the PCRA court conducted an evidentiary
hearing, at which Appellant and Attorney Hall both testified. According to
Appellant, just after the imposition of his sentence, he told counsel that he
wanted to file an appeal. See N.T. Hearing, 9/10/18, at 10. Appellant claimed
that Attorney Hall said that he would talk to Appellant about an appeal, but
Appellant never heard from Attorney Hall again. Id. at 10, 11. After
sentencing, Appellant was moved to several different jails, and when he finally
was settled at his “home facility” in July of 2017, he asked his mother to call
Attorney Hall to ask about the appeal. Id. at 11, 12. According to Appellant,
his mother could not reach counsel, so Appellant assumed that Attorney Hall
had not filed the appeal on his behalf. Id. at 12. He then filed his PCRA
petition seeking the restoration of his appeal rights nunc pro tunc. Id. at 12,
13.
Attorney Hall, however, testified that he and Appellant only spoke briefly
about an appeal, and counsel had informed Appellant that he could “think of
no meritorious claims.” Id. at 18. Attorney Hall insisted that Appellant never
asked him to file a post-sentence motion or an appeal, and he claimed that,
had Appellant done so, he would have filed an appeal. Id. at 18, 21. He also
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testified that he had no contact with Appellant’s mother after the sentencing
hearing. Id. at 22.
At the close of the PCRA hearing, the court took the matter under
advisement. On January 31, 2019, it issued a Pa.R.Crim.P. 907 notice of its
intent to dismiss Appellant’s petition, simply stating that it was “without
merit.” Pa.R.Crim.P. 907 Notice, 1/31/19, at 2 (unnumbered). On February
28, 2019, the court issued an order dismissing the petition “based upon lack
of merit.” Order, 2/28/19, at 1 (unnumbered; unnecessary capitalization
omitted).
Appellant filed a timely notice of appeal. It does not appear that the
court directed him to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. On June 26, 2019, the court issued a single-
paragraph Rule 1925(a) opinion, simply setting forth procedural facts of
Appellant’s case, the issue he raised in his Rule 1925(b) statement, and a
declaration that, “[t]his [c]ourt’s decision should be affirmed.” PCRA Court
Opinion, 6/26/19, at 1 (unnumbered).
Herein, Appellant raises a single claim for our review: “Did the PCRA
[c]ourt err and/or abuse its discretion when it denied [A]ppellant[’s] petition
under the PCRA seeking leave to file a direct appeal nunc pro tunc where trial
counsel failed to file an appeal?” Appellant’s Brief at 4.
Preliminarily, we observe that,
“[o]n appeal from the denial of PCRA relief, our standard and
scope of review is limited to determining whether the PCRA court’s
findings are supported by the record and without legal error.”
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Commonwealth v. Edmiston, 65 A.3d 339, 345 (Pa. 2013)
(citation omitted). “[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 prevailing party at the PCRA court level.”
Commonwealth v. Koehler, … 36 A.3d 121, 131 ([Pa.] 2012)
(citation omitted). “The PCRA court’s credibility determinations,
when supported by the record, are binding on this Court.”
Commonwealth v. Spotz, 610 Pa. 17, 18 A.3d 244, 259 (2011)
(citation omitted). “However, this Court applies a de novo
standard of review to the PCRA court’s legal conclusions.” Id.
Commonwealth v. Medina, 92 A.3d 1210, 1214–15 (Pa. Super. 2014) (en
banc).
Additionally, we recognize:
Our standard of review when faced with a claim of ineffective
assistance of counsel is well settled. First, we note that counsel is
presumed to be effective and the burden of demonstrating
ineffectiveness rests on appellant.
***
A petitioner must show (1) that the underlying claim has merit;
(2) counsel had no reasonable strategic basis for his or her action
or inaction; and (3) but for the errors or omissions of counsel,
there is a reasonable probability that the outcome of the
proceedings would have been different. The failure to prove any
one of the three prongs results in the failure of petitioner’s claim.
Our Supreme Court has held that counsel’s unexplained failure to
file a requested direct appeal constitutes ineffectiveness per se,
such that the petitioner is entitled to reinstatement of direct
appeal rights nunc pro tunc without establishing prejudice.
However, before a court will find ineffectiveness of counsel for
failing to file a direct appeal, the petitioner must prove that he
requested a direct appeal and the counsel disregarded the
request.
Commonwealth v. Ousley, 21 A.3d 1238, 1244 (Pa. Super. 2011).
Here, Appellant testified at the PCRA hearing that he requested counsel
file a direct appeal on his behalf. Attorney Hall, on the other hand, testified
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that Appellant never made that request. Thus, the PCRA court was required
to make credibility determination, which it failed to do. Our Supreme Court
has declared that “when a PCRA hearing is held, and the PCRA court makes
findings of fact, we expect the PCRA court to make necessary credibility
determinations.” Commonwealth v. Johnson, 966 A.2d 523, 539–40 (Pa.
2009). “Indeed, when a PCRA court has failed to make necessary credibility
determinations, we have not hesitated to remand for such findings.”
Commonwealth v. Spotz, 84 A.3d 294, 319 (Pa. 2014).
In this case, we conclude that we must remand for the court to make
the necessary credibility determination regarding whether Appellant
requested that Attorney Hall file a direct appeal. While we could presume that
the court believed Attorney Hall’s testimony that Appellant made no such
request, we cannot be certain that the court did not reject counsel’s testimony
and deny Appellant’s petition on some other basis. We decline to rest our
decision on speculation rather than explicit findings by the PCRA court.
Therefore, we vacate the court’s order and remand for it to make credibility
determinations on the record, and enter a new order ruling on Appellant’s
petition.
Order vacated. Case remanded. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/07/2020
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J-S01039-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA, : PENNSYLVANIA
:
Appellee :
:
v. :
:
SHAHID PARHAM, :
:
Appellant : No. 66 EDA 2019
Appeal from the Judgment of Sentence Entered June 18, 2015
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0015369-2013
BEFORE: BOWES, J., KUNSELMAN, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED APRIL 7, 2020
Shahid Parham (Appellant) appeals nunc pro tunc from the judgment
of sentence1 of 32 to 64 years of incarceration imposed after he was found
guilty in a non-jury trial of robbery, burglary, conspiracy, possession of an
instrument of crime (PIC), and several firearms offenses. We affirm.
The charges arose out of the September 10, 2013 armed robbery of
the victim, Dwayne Davis. During a struggle over Appellant’s gun, Davis
gained control of the weapon and fired at both Appellant and his co-
____________________________________________
1 We note that Appellant purported to appeal from the October 1, 2015
order, which granted a motion for continuance of a hearing on Appellant’s
motion for reconsideration of sentence. “In a criminal action, appeal
properly lies from the judgment of sentence made final by the denial of post-
sentence motions.” Commonwealth v. Shamberger, 788 A.2d 408, 410
(Pa. Super. 2001) (citation omitted). We have corrected the caption
accordingly.
* Retired Senior Judge assigned to the Superior Court.
J-S01039-20
conspirator, Muhammad Munson, wounding Appellant and killing Munson.
The trial court provided the following factual background.
Davis testified that on the afternoon of September 10,
2013, he was inside his home on the 2600 block of Carroll Street
in the city of Philadelphia, with his one[-]year[-]old daughter
and her babysitter, Rakita Davis [Rakita].10 At approximately
10:00 that morning, Davis received a phone call from an
individual who was interested in purchasing one of his watches.
He told that individual to come to his house, go around back,
and come in through the kitchen door.
_____
10 Rakita Davis and Dwayne Davis are not related.
At approximately 11:30 a.m.[,] there was a knock at the
back door and Davis let Appellant and [] Munson, into the
kitchen. On entering, Appellant walked towards the dining room
while Munson stayed by the back door. Once inside, Appellant
pulled out a silver revolver and pointed it at Davis, saying “you
know what time it is old head?” [N.T. 4/9/2015, at 28, 63.]
After an exchange of words, Munson punched Davis in the eye,
knocking him to the ground. As he attempted to stand up,
Appellant hit him in the head with the gun, saying “don’t move.”
[Id. at 64.]
After another exchange of words, Appellant aimed the gun
at Rakita[,] who was holding the baby. To “defend his family[,]”
Davis pinned Appellant against the wall as Rakita ran upstairs,
holding Davis’s baby. [Id.] Appellant, pinned against the wall by
Davis, fired a shot through the wall. In response, Davis grabbed
Appellant by the wrist and twisted his arm until the gun fell to
the ground. Davis testified that he retrieved the gun from the
ground while Appellant jumped on his back. Davis then fired two
shots under his left arm. Davis fired an additional two shots
towards the back door as Appellant and Munson fled out the
back door. Davis testified that at that time he did not know
where the shots went or if anyone had been hit.
After Appellant and Munson left, Davis went upstairs to
check on Rakita and his daughter[,] who were hiding upstairs in
a bedroom. Davis, Rakita, and the baby were driven by a friend
to another friend’s house[,] where they waited for Davis’s wife.
When his wife arrived, he told her to take their daughter to a
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hotel. Davis stayed at his friend’s house and later met up with
his wife and daughter at the hotel. At no point did Davis return
back to his house.
Davis testified that he did not immediately call the police
because he had never been put in this type of situation and “was
just scared.” [Id. at 70.] Davis received a phone call the day
after the shooting from his friend, Philadelphia Police Officer
Kaliv Ivy. During their conversation, Davis told Officer Ivy what
happened at his house the day before and was made aware that
“Homicide” was looking for him. Davis told Officer Ivy that he
needed a day or so to calm down but would go to [the police
station] with him the next day.
Officer Ivy testified that he found out about the shooting
the day after [it occurred] when he arrived at work. He
recognized the house where the shooting occurred as Davis’s
[residence]. He called Davis to inform him that “Homicide”
wanted to speak with him about what had happened since the
body of Munson had been found in his backyard. Officer Ivy
testified that Davis told him he was “shook up” and needed a
day or so to calm down. [Id. at 71.] The following day[,] Officer
Ivy accompanied Davis to [the police station] where he gave a
statement about what happened at his home two days earlier.
While giving his statement[,] Davis learned for the first time that
a dead body had been found in his back yard.
Philadelphia Police Officer David Cartagena testified that on
the afternoon of the robbery, he responded to a radio call of a
shooting in the 2600 block of Massey Street in the city of
Philadelphia.11 On arriving at the corner of Massey Street and
Dicks Avenue[,] he observed Appellant lying on the sidewalk, on
his right side,12 suffering a gunshot wound. On approaching
Appellant, Officer Cartagena spoke with Appellant but found
Appellant to be [] uncooperative. Appellant told Officer
Cartagena he was shot in the back but would not tell him where
it happened, who he was with, or anything about what had
happened. At no time during this interaction[] did Appellant
indicate to Officer Cartagena that there had been an altercation
at Davis’s home or that someone else had been shot.
_____
11 Massey Street is located parallel to Carroll Street where
Davis’s residence is located.
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12 This corner is approximately a block from Davis’s
residence.
Trial Court Opinion, 4/16/2019, at 3-5 (some quotation marks and citations
to record omitted; some name designations and capitalization altered).
Based on the foregoing, Appellant was arrested and charged with
twelve offenses: one count each of aggravated assault, robbery, burglary,
conspiracy, attempted theft, PIC, simple assault, recklessly endangering
another person (REAP), and four firearms offenses. A non-jury trial took
place on April 9, 2015, where Davis, Rakita, and Officers Ivy and Cartagena
testified as indicated supra. The trial court found Appellant guilty of robbery,
burglary, conspiracy, PIC, firearms not to be carried without a license,
prohibited possession of a firearm, and possession of firearm by a minor.2
A sentencing hearing was held on June 18, 2015. After the court heard
testimony from a Philadelphia police officer, as well as Appellant’s mother
and father, acknowledged receipt of the pre-sentence investigation (PSI)
report, and heard argument from the parties’ counsel, it sentenced Appellant
to an aggregate term of incarceration of not less than 32 nor more than 64
years.3
____________________________________________
2 The trial court found Appellant not guilty of aggravated assault. The
Commonwealth nolle prossed the remaining charges.
3 The trial court sentenced Appellant to the following consecutive terms of
incarceration: 8 to 16 years for robbery; 8 to 16 years for burglary; 8 to 16
(Footnote Continued Next Page)
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On June 23, 2015, Appellant filed a timely post-sentence motion for
reconsideration of his sentence, raising claims that the trial court never
convicted him of burglary, that his sentence “far exceeded the recommended
guideline range,” and that the court improperly considered, over his
counsel’s objection, the “irrelevant and unfairly prejudicial testimony” of a
police officer who suggested Appellant was part of a “dangerous street
gang.” Motion for Reconsideration of Sentence, 6/23/2015, at ¶¶ 1-4.
Following a hearing on October 22, 2015, the motion was denied.4 On
November 10, 2015, Appellant filed a motion for extraordinary relief,
seeking reconsideration of the denial of his post-sentence motion. The trial
court took no action on this motion.
(Footnote Continued) _______________________
years for conspiracy to commit robbery; 2 to 4 years for PIC, 2 to 4 years
for firearms not be carried without a license; 2 to 4 years for prohibited
possession of a firearm; and 2 to 4 years for possession of firearm by a
minor. On March 13, 2019, and March 21, 2019, the trial court filed
corrected sentencing orders to correct linkage of the sentence. All
conditions and the effective date of sentence remained the same. Order
3/13/2019, at 1 (unnumbered); Order, 3/21/2019, at 2 (unnumbered).
4 The notes of testimony from the hearing are not contained in the certified
record. The record does not contain an order denying Appellant’s post-
sentence motion, but the docket contains an entry on the same date as the
hearing, which provides as follows: “Order Denying Motion for Extraordinary
Relief. The defense post-trial motion for extraordinary relief is heard and
denied.” Docket, 10/22/2015. As discussed infra, Appellant later filed a
motion for extraordinary relief on November 10, 2015, but no such motion
had been filed as of October 22, 2015. Thus, it appears from the record that
the October 22, 2015 docket entry mistakenly stated it denied the motion
for extraordinary relief, instead of the motion for reconsideration of
sentence.
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On March 4, 2016, Appellant filed a notice of appeal with this Court,
which we quashed on February 13, 2018, as untimely filed. Id.
(unpublished memorandum at 7). On June 25, 2018, Appellant filed a
petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.
§§ 9541-9546, seeking reinstatement of his right to a direct appeal. After a
hearing on December 12, 2018, the PCRA court granted Appellant’s petition.
This timely-filed direct appeal followed.5 Both Appellant and the trial court
complied with Pa.R.A.P. 1925.
On appeal, Appellant has set forth two issues for our review. We begin
with Appellant’s sufficiency-of-the-evidence challenge. See Appellant’s Brief
at 14-16. According to Appellant, the Commonwealth failed to present
sufficient evidence of “his contemporaneous intent of committing a crime
once he was freely admitted into the home” of Davis to support his burglary
conviction. Id. at 14.
We review this issue mindful of the following.
When reviewing a challenge to the sufficiency of the
evidence, we must determine whether the evidence admitted at
trial, and all reasonable inferences drawn therefrom, when
viewed in a light most favorable to the Commonwealth as verdict
winner, support the conviction beyond a reasonable doubt.
Where there is sufficient evidence to enable the trier of fact to
find every element of the crime has been established beyond a
____________________________________________
5 On June 20, 2019, this Court dismissed the instant appeal due to the
failure of Appellant’s counsel to file a brief. By order filed July 12, 2019, we
reinstated the appeal.
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reasonable doubt, the sufficiency of the evidence claim must fail.
This standard applies equally where the Commonwealth’s
evidence is circumstantial.
In conducting this analysis, we do not weigh the evidence
and substitute our judgment for that of the fact-finder.
Additionally, the Commonwealth’s evidence need not preclude
every possibility of innocence in order to prove guilt beyond a
reasonable doubt. The fact-finder is free to believe all, part, or
none of the evidence.
Commonwealth v. Knox, 219 A.3d 186, 195 (Pa. Super. 2019) (internal
citations and quotation marks omitted).
Appellant was charged with burglary under subsection 3502(a)(1) of
the Crimes Code, which provides as follows.
(a) Offense defined.--A person commits the offense of
burglary if, with the intent to commit a crime therein, the
person:
(1)(i) enters a building or occupied structure, or
separately secured or occupied portion thereof, that
is adapted for overnight accommodations in which at
the time of the offense any person is present and the
person commits, attempts or threatens to commit a
bodily injury crime therein;
(ii) enters a building or occupied structure, or
separately secured or occupied portion thereof that
is adapted for overnight accommodations in which at
the time of the offense any person is present;
18 Pa.C.S. § 3502(a).
A defense to the prosecution for burglary is that “[t]he actor is
licensed or privileged to enter.” 18 Pa.C.S. § 3502(b)(3). However, “the
license or privilege to enter exception recognized by the burglary statute can
be negated [if it is acquired] by deception[.]” Commonwealth v.
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Edwards, 903 A.2d 1139, 1148 (Pa. 2006), citing Commonwealth v.
Thomas, 561 A.2d 699, 705 (Pa. 1989); see also Commonwealth v.
Hayes, 460 A.2d 791, 796-77 (Pa. Super. 1983) (holding defendant’s deceit
in gaining entrance to house vitiated any consent to enter, and thus
defendant was not licensed or privileged to enter under burglary statute).
“Thus, to prevail on a burglary charge, the Commonwealth is required to
prove beyond a reasonable doubt that the offender entered the premises,
with the contemporaneous intent of committing a crime, at a time when he
was not licensed or privileged to enter.” Commonwealth v. Cooper, 941
A.2d 655, 666 (Pa. 2007). “The specific intent to commit a crime necessary
to establish the intent element of burglary may be found in a defendant’s
words or conduct, or from the attendant circumstances together with all
reasonable inferences therefrom.” Commonwealth v. Eck, 654 A.2d 1104,
1108-09 (Pa. Super. 1995) (citations omitted).
In the instant case, the trial court concluded that the Commonwealth
proved beyond a reasonable doubt that Appellant committed the offense of
burglary. Trial Court Opinion, 4/16/2019, at 5-7. According to the trial
court, Appellant deceived Davis to gain entry into his home, and Appellant’s
words and conduct made it clear that he entered the home with the intent to
commit a crime. Id. at 6-7.
On appeal, Appellant argues that he lacked specific intent to commit a
crime because he had come to Davis’s home “by mutual agreement to
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purchase a watch” and Davis “welcomed the two boys [Appellant and
Munson] into his home.” Appellant’s Brief at 15. Further, Appellant
contends that before “the interaction quickly went awry,” there was no
evidence to suggest “that anything more was planned that evening[6] than
commerce” at an “appointed time.” Id. According to Appellant, the totality
of these circumstances “give[s] rise to the idea that, on the night in
question, a horrible series of events unfolded but there was no initial intent
to commit a burglary.” Id. at 16.
It is undisputed that Davis invited Appellant into his home. Therefore,
we first examine whether Davis’s permitting Appellant to enter his home was
vitiated by the nature of how he gained entry. We find Edwards instructive
in that regard. In Edwards, Edwards went to the victim’s home, claiming to
have money to settle a drug debt, but his actual purpose was to gain entry
into the residence to kill the victim. Edwards argued on appeal that he could
not be convicted of burglary because the victim allowed him into the home.
Our Supreme Court rejected his claim, explaining that the deceptive nature
of the entry negated any license or privilege to enter. 903 A.2d at 1148.
Similarly here, the evidence showed that Appellant went to Davis’s
home claiming he wanted to buy a watch, but his actual purpose was to gain
entry into the home to steal from Davis. N.T., 4/9/2015, at 59-60 (trial
____________________________________________
6 The incident occurred midday. N.T., 4/9/2015, at 59, 140-41.
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testimony of Davis); see also Trial Court Opinion, 4/16/2019, at 6 (trial
court, as factfinder, stating “Davis testified at trial that he allowed both
[Appellant and Munson] into his home to sell them a watch and not for any
other purpose. Although [] Davis voluntarily admitted both [Appellant and
Munson] into his home, he did so under the impression they were buying a
watch”). Thus, there was sufficient evidence to lead to the reasonable
inference that Davis granted Appellant access to his home for a “seemingly
legitimate reason,” when in fact Appellant entered so that he could commit a
crime. See Cooper, 941 A.2d at 667. Accordingly, we discern no error in
the trial court, sitting as trier of fact, finding beyond a reasonable doubt that
Appellant gained entry into Davis’s home by deception, thereby negating
Davis’s permission to enter.
Next, we examine the intent element of burglary. The trial court found
that Appellant’s words and conduct established his intent to commit a crime.
Once Appellant was inside Davis’s home, he pointed a gun at Davis’s torso,
placed his hand on Davis’s chest, and said, “You know what time it is, old
head.” N.T., 4/9/2015, at 28, 63. This evidence, along with Appellant’s
deceptive entry into the home, supports the conclusion that Appellant
possessed the specific intent to commit a crime at the time he entered
Davis’s home. See Eck, 654 A.2d at 1109.
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Based on the foregoing, we discern no error and agree with the trial
court that the Commonwealth proved the elements of burglary beyond a
reasonable doubt. Thus, Appellant is not entitled to relief on this claim.
Appellant next challenges the discretionary aspects of his sentence.
See Appellant’s Brief at 16-19. We consider this issue mindful of the
following.
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.
***
When imposing [a] sentence, a court is required to
consider the particular circumstances of the offense and the
character of the defendant. In considering these factors, the
court should refer to the defendant’s prior criminal record, age,
personal characteristics and potential for rehabilitation.
Commonwealth v. DiClaudio, 210 A.3d 1070, 1074-75 (Pa. Super. 2019)
(quoting Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa. Super.
2014)). “A sentencing court may consider any legal factor in determining
that a sentence in the aggravated range should be imposed.”
Commonwealth v. Bowen, 975 A.2d 1120, 1122 (Pa. Super. 2009)
(citations omitted). “In addition, the sentencing judge’s statement of
reasons on the record must reflect this consideration, and the sentencing
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judge’s decision regarding the aggravation of a sentence will not be
disturbed absent a manifest abuse of discretion.” Id.
An appellant is not entitled to the review of challenges to the
discretionary aspects of a sentence as of right. Rather, an
appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction. We determine whether the
appellant has invoked our jurisdiction by considering the
following four factors:
(1) whether appellant has filed a timely notice of
appeal, see Pa.R.A.P. 902 and 903; (2) whether the
issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence, see
Pa.R.Crim.P. 720; (3) whether appellant’s brief has a
fatal defect, Pa.R.A.P. 2119(f); and (4) whether
there is a substantial question that the sentence
appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.[] § 9781(b).
DiClaudio, 210 A.3d at 1075 (quoting Commonwealth v. Samuel, 102
A.3d 1001, 1006-07 (Pa. Super. 2014)).
Appellant has satisfied the first three requirements: he timely filed a
notice of appeal nunc pro tunc, preserved his issues in a post-sentence
motion, and included a Pa.R.A.P. 2119(f) statement in his brief. See
Appellant’s Brief at 12. Therefore, we now consider whether Appellant has
raised a substantial question for our review.
The determination of what constitutes a substantial
question must be evaluated on a case-by-case basis. A
substantial question exists only when the appellant advances a
colorable argument that the sentencing judge’s actions were
either: (1) inconsistent with a specific provision of the
Sentencing Code; or (2) contrary to the fundamental norms
which underlie the sentencing process.
DiClaudio, 210 A.3d at 1075 (citations and quotation marks omitted).
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In his Pa.R.A.P. 2119(f) statement, Appellant contends the “trial court
erred in double-counting [Appellant’s] prior record score and offense gravity
score.” Appellant’s Brief at 12. An assertion that the trial court “relied on
factors already taken into account in determining [an appellant’s] prior
record score and offense gravity score” raises a substantial question.
Commonwealth v. Goggins, 748 A.2d 721, 731 (Pa. Super. 2000)
(citations omitted). Thus, we review the merits of Appellant’s claim.
Specifically, Appellant argues that his prior record does not provide a
basis for imposing an aggravated-range sentence because his prior record
has already been taken into account by the sentencing guidelines.
Appellant’s Brief at 17. He argues that he is being “punished twice, first for
his acts as a child and again [] for his actions in the present matter.” Id. at
18. According to Appellant, the trial court’s statement that Appellant is “a
violent person whose violence is deeply ingrained” was an impermissible
factor, since the sentencing guidelines already account for this. Id. at 18-
19. He also argues that his sentence does not take into account his “relative
youth.” Id.
At sentencing, the court heard testimony from Philadelphia Police
Officer Matthew York, who was assigned to the South Philadelphia Gang Task
Force. The task force is a program “implemented to run focused deterrence”
and “combat … intercity gangs and violence.” N.T., 6/18/2015, at 47.
Officer York’s work included identifying and classifying gang members. Id.
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at 48. He testified about Appellant’s affiliation with one of the largest and
most violent gangs in Philadelphia. Id. at 51-67. The court also heard
testimony of Appellant’s mother and father, argument from the parties’
counsel, and Appellant’s allocution.
The court offered sufficient, valid reasons for imposing the sentences it
did. At sentencing, defense counsel argued that the court should impose an
aggregate sentence of 5½ to 11 years, followed by probation, which he
argued was reflective of the most serious conviction, robbery. The trial
court responded as follows.
THE COURT: What about all of the other offenses? I mean,
does he get a discount for committing seven crimes at once? I
mean, it’s not just robbery, it’s a burglary. It’s the worst kind of
robbery.
***
… [W]hen people can’t feel safe in their own homes -- I mean,
you go out on the street, you go for a walk, you expect to be
safe, but depending on the neighborhood, you’re taking a
chance, the time of day. But in your own home, I can’t think of a
more serious type of robbery.
***
So we have to sentence him on the robbery. We also have to
sentence him on the burglary. He did this with another man. He
might not have done it by himself. If it was just him versus the
complainant, he might not have taken the chance, but this was a
conspiracy, it’s an additional crime. And then there’s the
weapon, and he violated the gun laws every way he could. We
have without a license, prohibited person who’s still a minor. So
I’m just letting you know I’d be very unlikely to sentence him to
the guidelines for one offense and forget about everything else.
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N.T., 6/18/2015, at 70-71. The court further stated that Appellant “doesn’t
do very well on supervision. He doesn’t do all that great in custody either,
apparently…. He should be kept in prison until he’s mature enough to make
better decisions.” Id. at 71.
After hearing testimony from Appellant’s mother and father, Appellant
gave the following allocution.
[APPELLANT]: I apologize to my family. I apologize to the
Court. That’s all.
To the complainant, I apologize.
[DEFENSE COUNSEL]: Thank you, Your Honor.
[PROSECUTOR]: No questions.
THE COURT: All right. The record should indicate that [Appellant]
apparently forgot [to apologize to] the complainant until his
lawyer leaned over and whispered in his ear, which is fine, I
mean, you’re sitting there so that you can give him counsel. But
apologies to the complainant, to the Court, to me, I mean, they
don’t carry a whole lot of weight. I guess it’s nice to hear.
[DEFENSE COUNSEL]: Just for the record, we did discuss that,
and he did apologize in the room, but obviously, when you get
up here, you’re nervous, you forget. He’s young.
THE COURT: That’s what I said, he forgot about the complainant.
Id. at 87-88.
The trial court then offered the following explanation for the imposition
of sentence.
THE COURT: [Appellant], as I look at your record and I look at
the seriousness of this offense, and there are some offenses
where it’s almost impossible to simply say, okay, we’ll give you
another chance. The reason is, you’re too violent. We give you
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another chance, you hurt somebody, you rob somebody, you
shoot somebody. That’s the risk we’re taking if we give you
another chance.
Can you think of any reason why I should send you home
in a few years as opposed to keeping you in close custody for
twenty, thirty years until you are a mature man who maybe,
maybe will stop shooting people, stop robbing people? Any
reason you can think of why I should do that?
[APPELLANT]: I made a mistake.
THE COURT: [Defense counsel], any way you want to elaborate
upon that?
[DEFENSE COUNSEL]: Sure. Because, Your Honor, the reason
you should do that is this, giving him a sentence that I propose,
five and a half to eleven years --
THE COURT: Your proposal is absurd. We give people five and a
half when they plead guilty to much less serious crimes than
this. So you can forget about the five and a half to something.
What I’m thinking is that he’s twenty or thirty years away
from being mature enough to stay out of trouble. Even if he gets
out of jail at 50, he’ll say to himself, you know, I don’t have that
much time left, maybe I should stay out of trouble. But I don’t
think if he gets out of jail at 25 he’s going to have that thought.
***
[Appellant], I’ve considered the presentence report…[,] …
the arguments of counsel, the testimony presented. I think that
you are a violent person whose violence is deeply ingrained. It
may or may not be your fault. That was the way you were
brought up. It was the people you were surrounded by. But I’m
firmly convinced that when you go back on the street, you will
repeat. The only question is whether you go back on the street
sooner or later. For the protection of the community, to deter
other people who think that being a gangster at 24th and Tasker
[Streets] is a good thing, I’m sentencing you [as stated supra].
Id. at 88-90.
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Additionally, the trial court emphasized in its opinion that “it felt
[Appellant] was at serious risk for recidivism. In reviewing [Appellant’s]
criminal history, the court noted a pattern of criminal activity and gang
affiliation.” Trial Court Opinion, 4/16/2019, at 8. Further, the court found
Appellant “showed no acceptance of responsibility or remorse for his acts,
[which was] further illustrated by counsel having to remind him to apologize
to the complainant.” Id. See Commonwealth v. Begley, 780 A.2d 605,
644 (Pa. 2001) (noting lack of remorse, as a sign of the defendant’s
character, is an appropriate consideration for sentencing outside of the
guidelines). The court “determined that by running the sentences
consecutively, [Appellant] would have more time for reflection and
rehabilitation.” Id.
In sum, the trial court’s determination was not manifestly
unreasonable, or the product of partiality, prejudice, bias, or ill-will. The
trial court reviewed Appellant’s PSI report, and thus was aware of all
relevant sentencing factors. Commonwealth v. Baker, 72 A.3d 652, 663
(Pa. Super. 2013). Moreover, the trial court considered Appellant’s age, lack
of maturity, extensive violent criminal history, which includes an
adjudication for attempted murder at the age of 11, and lack of remorse in
evaluating Appellant’s propensity for violence, high risk for recidivism, and
lack of amenity to rehabilitation. N.T., 6/18/2015, at 70-71, 87-90. These
considerations are permissible and differentiate from factors enumerated in
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the sentencing guidelines. Accordingly, we do not agree that the trial court
double-counted any factors or abused its discretion in fashioning Appellant’s
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/7/2020
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01-03-2023
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04-07-2020
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https://www.courtlistener.com/api/rest/v3/opinions/3987153/
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This case involves the right and title to the use of what is called winter waters of Dove creek in Box Elder county, Utah. There is no controversy as to the use of the waters between April 15 and September 15 of each year, the period referred to as the irrigation season. The dispute arises as to the use of the waters during the period between September 15 and April 15 of each year, the plaintiff contending that he during that period is entitled to the use of all the waters of the creek, the defendants that the respective rights of the parties during that period are the same as during the period between April 15 and September 15 on the basis of five-thirteenths of the stream to the plaintiff and eight-thirteenths to the defendants. The case was tried to the court, who on findings rendered a judgment in favor of the plaintiff, awarding to him all the waters of the stream between September 15 and April 15 of each year, when there was sufficient water in the stream to flow to his premises which are below the premises of the defendants, except the court granted the defendants during such period sufficient waters for culinary purposes and for live stock. The defendants appeal.
They challenge the findings, claiming that they in material particulars are not supported by the evidence, and that the conclusions and judgment are against law. As we consider the record, the controlling question is largely one of fact. The presented questions of law principally are dependent upon the evidence. The findings are full and complete, 1 and in detail reflect the facts as viewed and found by the trial court. Though this is a case in equity, with the whole of the proceedings certified to us, and in effect presenting a trial de novo on the record, yet, if on a review thereof we, considering as we do the better position of the trial court to judge the credibility of the witnesses and the weight to be given their testimony, should be of the opinion that the findings on all of the material issues are *Page 407
supported by a fair preponderance of the evidence, the judgment should be affirmed, unless the conclusions drawn therefrom are wrong or are not supported by the findings.
At an early day, between 1870 and 1880, the predecessors of the parties appropriated all of the waters of the creek. The findings show a history somewhat in detail as to the lands acquired by the predecessors of the parties and the use made by them of the waters in controversy. Among other things, the court found that Dove creek is a natural channel of water, having its source in the mountains, and flowing in an easterly direction through the lands of the defendants, and then easterly or southeasterly about two or three miles to the lands of the plaintiff. His lands consist largely of meadow lands in sections 21, 22, and 27 in Tp. 12 N., Rg. 14 W., in Box Elder county. On such lands the plaintiff and his predecessors pastured a large number of cattle and grew wild hay and alfalfa for feeding purposes. In about 1870 the plaintiff's predecessors in interest, by means of dams, ditches, and laterals at the westerly boundary of the lands now owned and occupied by the plaintiff, diverted all of the waters from the creek and used them on such lands for irrigation and for stock and domestic purposes during the entire year, and so continuously used all of such waters until about 1880; and that such appropriation was the first and prior appropriation of all of the waters of the creek. In about 1880 James Rosevere, who then owned a part of the westerly portion of the lands now owned by the plaintiff, took up a homestead in section 18, consisting of about 160 acres about 3 miles up-stream and westerly of the lands now owned and occupied by the plaintiff. In 1884 Rosevere sold all his right, title, and interest in the lands now owned and occupied by the plaintiff to J.H. Clark, one of the plaintiff's predecessors. Joseph J. Rodgers took up a homestead also in section 18 of about 80 acres about the same time Rosevere took up his homestead. Both claimed rights in and to the use of waters of Dove creek, and used some of the waters on *Page 408
their homesteads for irrigation and for domestic purposes. Soon a controversy arose between Clark, who became the sole owner of all of the lands now owned and occupied by the plaintiff, and Rodgers and Rosevere, whose homesteads were situated up stream about 3 miles from Clark's lands, as to the use of the waters of the creek. To compromise and determine their respective rights, a written contract in July, 1885, was entered into between Clark, Rosevere, and Rodgers, who then had or claimed the sole and exclusive right to the use of all of the waters of the creek. By the terms of the contract it was agreed that from and after April 15 of each year Rodgers was to use all of the waters of the stream for three days, and then turn the waters back into the creek, then Clark was to use all of the waters for five days, then Rosevere for five days, and so on consecutively until September 15 of each year, "and after the 15th day of September it (the water) is to go down the creek bed to J.H. Clark's Ranch and James Rosevere's ranch." The agreement is subscribed by Clark, Rosevere, and Rodgers before a notary public, and was recorded in the office of the county recorder of Box Elder county, and thereafter was turned over to Rosevere for safe-keeping, who framed it and hung it on the wall in the dining room of his ranch house, where it remained for many years and until a few years before the commencement of this action in April, 1928, when it disappeared.
In 1913 the plaintiff by mesne conveyances became the owner of all of the lands owned and acquired by Clark. The defendant Jones Thomas Ranch Company, by mesne conveyances, became the owner of the homesteads of Rosevere and Rodgers. In October, 1926, the ranch company by contract conveyed to the defendant Ward all its right, title, and interest in the homesteads; and at the commencement of this action, and at the time of the trial, Ward had become the equitable owner and possessor of all of the properties owned by Rosevere and Rodgers. Thus the plaintiff deraigns title *Page 409
through Clark and his predecessors, and Ward through the Jones Thomas Ranch Company and its predecessors. The ranch company acquired title in about 1922 through E.H. Jones, who acquired title in about 1903.
It is the claim of Ward: (1) That, under the agreement of 1885, he through his predecessors acquired a right to the use of the waters of the creek not only between April 15 and September 15 of each year but also during the period from September 15 to April 15; (2) that, if the agreement is not susceptible of such a construction, the agreement is not binding on him, for the stated reason that it is a personal agreement, and binding only as to the parties thereto, and is not a covenant running with the land; (3) that by his grant from the Jones Thomas Ranch Company he expressly was granted "8/13 of the flow of Dove Creek," which he contends was the right acquired by his grantor and its predecessors, and thus Ward laid claim to the use of eight-thirteenths of all of the waters of Dove creek during the whole of the year, and undertook to so use such portion or quantity of the waters during the whole year. That led to this lawsuit.
The court not only found that the purpose of entering into the agreement of 1885 was to compromise, settle, and determine the respective rights of the parties to the agreement, and fix and determine the time, duration, and use of the water to which each party was entitled, but also found that, 2 when the agreement was entered into, the lands then owned by Rosevere and Rodgers were devoted only to the raising of grain and a small amount of alfalfa and a small amount of garden products, and did not require water prior to April 15, or during the winter period, and that the lands of Clark, located about 3 miles down stream, were meadow lands, which by irrigation produced large crops of hay, and for such purpose and to water a large amount of live stock the waters during the period between September 15 and April 15 were beneficial and necessary, and that the parties by the agreement intended that Clark *Page 410
should have the entire flow of the stream during such period. The court further found that the parties to the contract and their successors in interest until a few years before the commencement of this action so understood the agreement, kept and performed all of the terms and conditions thereof, and used and distributed the waters as provided by the agreement, giving to Clark and his successors, including the plaintiff, the whole of the stream during the period between September 15 and April 15 of each year, except when the waters were wrongfully and surreptitiously used by some of the predecessors of the defendants. In that connection the court further found:
"That from the year 1885 when said contract was made, until a few years prior to the bringing of this action, during which time said contract hung on the wall in the dining room of the James Rosevere ranch house, the owners of the various ranches had no trouble with respect to their various water rights, but that it thereafter became apparent that the so-called winter water rights in Dove Creek could be used advantageously on the upper ranches for the irrigation of alfalfa prior to April 15th of each and every year, and that thereupon said agreement disappeared, and that the immediate predecessors of the defendants began for the first time to assert a right to the use of the winter waters of Dove Creek, but in this connection the Court finds that the defendants are not the owners of any of the waters of Dove Creek between September 15th and the succeeding April 15th, which is hereby designated as the winter water right, save and except that the defendants may divert from the natural channel of said Dove Creek sufficient waters for culinary purposes and for the watering of their sheep, providing that the same is returned to said channel after it has been used by the defendants for the purpose aforesaid."
The court further found that the respective rights of the parties in and to the use of the waters of the creek were not only as established by the agreement of 1885, but also as the predecessors of the plaintiff and of the defendants since 1885 and, until a few years before the commencement of this action, used and applied the waters of Dove creek in rotation as specified in the contract, giving to Clark and his *Page 411
successors, including the plaintiff, the whole of the so-called winter waters.
It is urged by the defendants that the findings in such particular are either not supported by, or are against the great weight of the evidence. That the agreement of 1885 was entered into and recorded is not disputed. The court found, and there is ample evidence to show, that Ward, when he purchased and acquired his interest, had actual knowledge of the agreement. Nor is there any substantial dispute that the waters of the creek were used by the parties to the agreement and by their successors as found by the court, the summer waters in rotation, and the whole of the winter waters by the plaintiff and his predecessors, until some time after Jones acquired title. There is a direct conflict in the evidence as to the use he and the Jones Thomas Ranch Company made of the winter waters. Testimony was given on their behalf that some of the winter waters were used by them for domestic purposes and for irrigation prior to April 15. But the court found that whatever use was made by them was wrongful and surreptitious, and, when notified by the plaintiff to desist making such use, the water was turned back into the channel for plaintiff's use; and that his use of the winter waters was not otherwise interrupted or interfered with, until after Ward acquired title and asserted a right to the use of eight-thirteenths of the stream during the whole year.
On a review of the evidence we are satisfied that the findings as made by the trial court are supported by a fair preponderance of the evidence. In such view the question presented urged as to whether the agreement of 1885 was personal and binding only on the parties thereto and as to whether it is or is not a covenant running with the land is of no controlling importance. As already observed, the agreement as found by the court and as shown by the evidence was entered into to compromise, settle, and define the respective rights of the parties thereto, and to fix and determine *Page 412
their respective use of the water; and since 1885, and until a few years prior to the commencement of this action, the predecessors of the parties used the waters as stipulated by the agreement. Such usage thus fixed and determined the rights of the predecessors of both the plaintiff and the defendants, regardless of the agreement; and thus the defendants acquired no greater rights in and to the use of the waters of the creek than were possessed or acquired by their predecessors.
There is another point urged. The court found, and the evidence shows, that since 1885 the predecessors of the defendants, after using the summer waters on their lands for the allotted period, turned the waters back into the natural channel of the creek at a point near the 3 western boundary of their lands, and where a large diverting box was constructed to divert waters from the creek on their lands; that for some years prior to the defendants acquiring title there was constructed at a point about two miles westerly and up stream of the diversion point of the predecessors of the defendants what is called a savings ditch connected with the creek and running easterly and parallel with the natural channel of the creek to the lands now owned by the defendants, by means of which ditch the waters when low were diverted from the natural channel and carried to the defendants' lands and used for irrigation for the allotted period, and then turned back into the natural channel at the established and regular diversion point by means of a ditch connecting the savings ditch with the natural channel and coursed down to the plaintiff's lands; but, after Ward acquired title, and after the commencement of this action, he, instead of turning the waters from the savings ditch back into the natural channel at the established diversion point, turned them back into the channel at the upper end of the savings ditch and where the waters were taken into that ditch, thus, requiring the waters so turned over to the plaintiff to course and soak the channel for about two miles, resulting *Page 413
in a great loss of water to him. Such matters were brought into the case by a supplemental complaint. The facts with respect thereto are not disputed. The court required the defendant Ward to turn the water back into the natural channel at the established diversion point, and where all of the predecessors of Ward had theretofore turned the water into the natural channel, for the use of the plaintiff. Complaint is made of that. It is urged that the savings ditch was constructed by the predecessors of the defendants, and hence the plaintiff had no interest in the ditch. The evidence is rather uncertain as to just when and by whom the savings ditch was constructed. No direct finding is made on the subject. We, however, do not regard that of controlling importance. The court did not award the plaintiff any right, title, or interest in the savings ditch. What the court did was to require the defendant Ward to turn the water back into the natural channel at the old and established diversion point of all of the predecessors of Ward. There is no apparent reason why it is more convenient or beneficial to Ward to turn the water back at the intake of the savings ditch than at the established diversion point; and it is apparent that it is an injury and a great loss to the plaintiff if the water is turned back to him at the upper end of the savings ditch and not at the regular and established diversion point. We think the judgment in such particular is proper.
The findings and evidence show that, depending upon climatic conditions, the flow of the creek varies, and that there have been periods when there was not sufficient water in the creek to flow to plaintiff's premises. On such occasions the court by its decree permitted the defendants to take and use all of the waters of the creek until there was a sufficient increase of the flow to permit the waters to go down to plaintiff's premises. The court also decreed that the defendants during the winter period were permitted to divert sufficient waters of the creek for culinary purposes *Page 414
and to water live stock. We think the court awarded the defendants all they were entitled to, and that they have no just cause to complain.
The judgment is therefore affirmed, with costs to the plaintiff.
CHERRY, C.J., and ELIAS HANSEN, EPHRAIM HANSON, and FOLLAND, J.J., concur.
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These two appeals were decided by Per Curiam orders of affirmance filed July 24, 1934.
A petition for a rehearing suggests that inasmuch as other controversies are dependent in part upon the reasoning of the Court for its decision in this case that the Court should indicate more definitely than has been done, what the basis for its decision on these appeals was, especially in view of the fact that one of the Justices of this Court dissented from the conclusions of the majority. *Page 341
John C. Jordan was employed as principal by the Robert Hungerford Industrial School, a colored institution maintained from funds collected from students and from private donations. He was to receive $100.00. a month, a house to live in, and his duties were to assume charge of and work for the school, and, in his spare time, to solicit funds. He served for eight years and one month, and was able to draw only a small portion of his salary. During his encumbency certain moneys were borrowed from him by the Trustees, for which they gave him a mortgage to secure it. The total amount of the school's debt to Jordan is alleged to have reached the sum of $13,591.83. When Jordan was discharged he hired a lawyer and proceeded to take steps to collect what was his due. The books were audited to ascertain what this amount was. Thereafter a meeting was called and held, attended by nine Trustees of the Robert Hungerford Industrial School. Jordan and his attorneys were there. At this meeting the amount due to Jordan was reduced to a stated account and it was agreed that the corporate charter of the school be amended to allow for the execution to Jordan of a mortgage on the school's property to secure the note which was to represent the amount agreed upon as due to Jordan. The charter was so amended and a mortgage of the school's property to secure Jordan's debt of $13,591.83 was duly executed and given to him.
This was a suit in equity to cancel the mortgage so given, on the ground that Jordan fraudulently misrepresented the amount of his indebtedness and on the further ground that the mortgage was illegally executed by the Robert Hungerford School, a nonprofit corporation, the membership of which consists of certain Trustees and the object of which is to operate a vocational school for negroes. *Page 342
This Court in considering second as to the final decree deemed it wholly unnecessary to decide anything more than that the evidence was ample to sustain the Chancellor's finding in favor of the defendants on the facts of the case as shown by the evidence, and therefore that decree was affirmed. Since the final decree properly dismissed the bill against Jordan, the principal defendant, no other decree than final dismissal could have been made with reference to the two defendants who were dismissed from the case prior to final decree. So there was no reversible error shown as to the interlocutory order first appealed from.
A review of the case again on appellant's petition for rehearing has simply confirmed our conviction that our judgment of affirmance in these two cases entered on July 24, 1934, is correct and should be adhered to now.
Rehearing denied in each case.
DAVIS, C. J., and WHITFIELD, TERRELL and BUFORD, J. J., concur.
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J-S64020-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRODERICK WAYNE HARRIS :
:
Appellant : No. 461 WDA 2019
Appeal from the Judgment of Sentence Entered June 11, 2015
In the Court of Common Pleas of Fayette County Criminal Division at
No(s): CP-26-CR-0001639-2014
BEFORE: BOWES, J., LAZARUS, J., and PELLEGRINI, J.*
MEMORANDUM BY LAZARUS, J.: FILED APRIL 07, 2020
Broderick Wayne Harris appeals nunc pro tunc from his judgment of
sentence, entered in the Court of Common Pleas of Fayette County, after being
found guilty of 44 criminal counts, including robbery, unlawful restraint of a
minor, criminal conspiracy, false imprisonment of a child, aggravated assault,
unlawful restraint, false imprisonment, burglary, criminal trespass, theft by
unlawful taking, terroristic threats, unauthorized use of a motor vehicle,
kidnapping and facilitating a felony. Harris was sentenced to serve an
aggregate sentence of 25-50 years’ imprisonment. After careful review, we
dismiss the appeal.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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J-S64020-19
The facts surrounding Harris’ arrest are set forth in detail in the trial
court’s post-sentence motion opinion. See Trial Court Opinion in Support of
Jury Verdict, 10/2/15, at 3-14. In short, Harris and his compatriots broke into
a residence,1 pointed guns in their six victims’ faces, repeatedly struck the
victims in the face and head with their guns, and terrorized them by
threatening to kill the victims if they did not comply with their demands and
turn over money. Two of Harris’ cohorts drove one of the victims, Jonathan
Byers, at gunpoint to an ATM, where they unsuccessfully attempted to make
him withdraw money. Byers was driven back to the residence, where his
hands were tied and the defendants continued to physically assault him and
threaten him.
After a three-day trial held in March 2015, the jury returned a guilty
verdict on the above-stated 44 offenses.2 On June 11, 2015, the trial court
sentenced Harris to consecutive terms of imprisonment as follows: 7½ to 15
years’ imprisonment ((Count 16) robbery); 7½ to 15 years’ imprisonment
((Count 17) robbery); 7½ to 15 years’ imprisonment ((Count 18) robbery);
and 2½ to 5 years’ imprisonment ((Count 11) unlawful restraint of minor
victim). Harris was also sentenced to serve a term of 7½ to 15 years’
____________________________________________
1 A four-year-old child was present in a bedroom in the home at the time of
the attack.
2The jury found Harris guilty of Counts 1-2 and 8-48 and found him not guilty
of Counts 4-7.
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imprisonment ((Count 15) false imprisonment of child) to run concurrently
with the prior sentences at Counts 16, 17, 18 and 11.3 Harris filed a timely
post-sentence motion on June 18, 2015, claiming that the verdict was against
the weight of the evidence due to the unreliable identification testimony of
witnesses that “should not have been found to overcome the presumption of
innocence and establish proof of [Harris’] guilt beyond a reasonable doubt.”
Post-Sentence Motion, 6/18/15, at ¶¶ 3-4. The trial court denied Harris’ post-
sentence motion and, on July 29, 2015, he filed a timely notice of appeal and,
on August 21, 2015, a Pa.R.A.P. 1925(b) court-ordered concise statement of
errors complained of on appeal. Harris’ appeal was dismissed due to counsel’s
failure to file a docketing statement. See Pa.R.A.P. 3517.
On August 20, 2015, Harris filed a pro se PCRA petition. On October 1,
2015, Harris’ PCRA petition was dismissed without prejudice to refile after the
appeal was completed.4 On May 15, 2017, Harris filed a second PCRA petition.
On May 24, 2017, the court appointed James V. Natale, Esquire, to represent
Harris, and ordered Attorney Natale to file an amended brief. On July 14,
2017, counsel sought to withdraw due to a conflict of interest from having
represented one of Harris’ co-defendants at trial. The court granted counsel’s
____________________________________________
3 No further penalty was imposed at Counts 1-3, 8-15, 19-48.
4 There is an unexplained gap in the record between the date that our Court
dismissed the appeal and the date that the trial court issued its Rule 1925(a)
opinion. The trial court docket indicates that our Court’s order dismissing
Harris’ appeal was filed on October 27, 2015. However, our docket indicates
that the order was entered on September 18, 2015.
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withdrawal request and new counsel, Michael Ford, Esquire, was appointed as
PCRA counsel. Attorney Ford filed an amended PCRA petition on February 7,
2019. After a hearing, the trial court granted Harris’ PCRA petition finding
that Harris “was denied effective assistance of counsel for counsel’s failure to
file a docket entry pending appeal . . . causing the appeal to be denied[;]” the
court reinstated his appeal rights. See Order, 3/11/19. On March 28, 2019,
Harris filed a timely notice of appeal and Rule 1925(b) court-ordered concise
statement of errors complained of on appeal.
Harris presents the following issues for our consideration:
(1) Was Jonathan Byers[’] identification of [Harris] at trial
unreliable[?]
(2) Did the Commonwealth present evidence not provided to
[Harris] through discovery when it introduced the testimony
of Jonathan Byers[’] identification of [Harris?]
(3) Did the trial court err in denying [Harris’] motion for mistrial
when the Commonwealth presented evidence not provided
to [Harris] through discovery, specifically, the testimony of
Jonathan Byers[’] identification of [Harris?]
(4) Was the verdict against the weight of the evidence because
the Commonwealth failed to prove that [Harris] was one of
the actors who committed the alleged crimes[?]
(5) Did the trial court err in denying [Harris’] post[-]sentence
motion for a new trial as the jury verdict was against the
weight of the evidence[?]
(6) Did the evidence presented at trial fail to sufficiently
establish beyond a reasonable doubt that [Harris] was one
of the actors who committed the alleged crimes[?]
Appellant’s Brief, at 7.
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In essence, Harris’ issues boil down to one central contention – the
Commonwealth failed to prove each offense because it did not prove “through
scientific evidence or eyewitness testimony [that he] committed the crimes
for which [he wa]s charged.”5 Appellant’s Brief, at 9.
Harris takes issue with the identification evidence provided by victim
Jonathan Byers. We first note that “[a]ny uncertainty in an eyewitness’s
identification of a defendant is a question of the weight of the evidence,[6] not
its sufficiency.” Commonwealth v. Cain, 906 A.2d 1242, 1245 (Pa. Super.
2006). In Commonwealth v. Grahame, 482 A.2d 255 (Pa. Super. 1984),
our Court noted:
____________________________________________
5 Other than in his statement of questions presented, Harris makes no other
mention throughout his appellate brief of his motion for a mistrial or of a
discovery violation. Thus, we find issues two and three waived.
6 We also recognize that weight of the evidence issues must be raised before
the trial judge “in a motion for a new trial[,] . . . orally[,] . . . by written
motion[,] . . . or in a post-sentence motion.” See Pa.R.Crim.P. 607(A).
Failure to raise the issue below will result in waiver on appeal.
Commonwealth v. Burkett, 830 A.2d 1034, 1037 (Pa. Super. 2003). Here,
Harris filed a timely post-sentence motion after he was sentenced. In that
motion he raised the current weight issue based on his perceived lack of
identification evidence. Despite the denial of that motion, the trial court
ultimately granted Harris the right to file an appeal nunc pro tunc due to
counsel’s ineffectiveness resulting in the dismissal of his appeal. We note that
the term “nunc pro tunc” means “now for then.” Commonwealth v. Wright,
846 A.2d 730, 735 (Pa. Super. 2004) (citing Black’s Law Dictionary, at 1069
(Sixth Ed. 1990). It is “a phrase applied to acts allowed to be done after the
time when they should be done, with a retroactive effect, i.e., with the same
effect as if regularly done.” Id. Thus, we find that the current nunc pro tunc
appeal puts Harris back in time following the denial of his timely filed post-
trial motions. Thus, he has properly preserved the issue on appeal.
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J-S64020-19
Proof beyond a reasonable doubt of the identity of the accused as
the person who committed the crime is essential to a conviction.
Commonwealth v. Reid, [] 187 A 263 ([Pa. Super.] 1936). The
evidence of identification, however, needn’t be positive and
certain in order to convict, although any indefiniteness and
uncertainty in the identification testimony goes to its weight.
Commonwealth v. Mason, [] 236 A.2d 548 ([Pa. Super.] 1967).
Id. at 232 (citations omitted) (emphasis in original).
The only case law cited in the argument section of Harris’ brief pertains
to the legal standard for sufficiency of the evidence claims, noting that the
Commonwealth must “prove each and every element of a charge beyond
reasonable doubt.” Appellant’s Brief, at 10, 16, citing Commonwealth v.
Harper, 403 A.2d 536 (Pa. 1979) and Commonwealth v. Richardson, 357
A.3d 671 (Pa. Super. 1976). A sufficiency of the evidence review, however,
does not include an assessment of the credibility of the testimony at trial. As
noted supra, such a claim is more properly characterized as a weight of the
evidence challenge. See Commonwealth v. Wilson, 825 A.2d 710, 713-14
(Pa. Super. 2003).
While Harris’ argument improperly characterize the claim on appeal as
one of sufficiency of the evidence, the remainder of his appellate brief is a
discourse of suppositions regarding the accuracy of Byers’ identification and
the degradation of memory that is “exacerbated by the passage of time.”
Appellant’s Brief, at 12. Harris also briefly references Pa.R.E. 603, the
competency of witnesses, and discusses the testimony from the other victims
and their inability to identify Harris as one of their attackers. Id. at 13.
Finally, Harris concludes his argument by waxing poetically about the inherent
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J-S64020-19
unreliability of eyewitness testimony and when, if ever, it should be
suppressed from trial. Id at 14.
Not only is Harris’ argument nonsensical, it is also unsupported by
citation to the record and does not consist of any developed issues capable of
appellate review. See In re W.H., 25 A.3d 330, 339 n.3 (Pa. Super. 2011)
(citation omitted); see also Pa.R.A.P. 2119(a) (“The argument shall be
divided into as many parts as there are questions to be argued; and shall have
at the head of each part—in distinctive type or in type distinctively displayed—
the particular point treated therein, followed by such discussion and citation
of authorities as are deemed pertinent.”) (emphasis added).
Finally, Harris has also failed to append a copy of the trial court’s opinion
and his Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal
to his appellate brief (although he lists the trial court’s opinion as “App. A” in
the index of his brief). See Pa.R.A.P. 2111(b), (d). Due to the significant
deficiencies in Harris’ brief, we dismiss the appeal. See Karn v. Quick &
Reilly, Inc., 912 A.2d 329 (Pa. Super. 2006) (appeal may be dismissed or
quashed where deficiencies in appellant’s brief are such that Court unable to
conduct meaningful review).
Appeal dismissed.7
____________________________________________
7 We, note, however, that even if we were to address the weight of the
evidence claim regarding Byers’ identification testimony, Harris would not be
entitled to relief. Here, at trial, victim Jonathan Byers described the height,
clothing, gender, and race of his attacker. N.T. Jury Trial, 3/3/15, at 142-43.
-7-
J-S64020-19
Judge Pellegrini joins this Memorandum.
Judge Bowes files a Dissenting Statement.
____________________________________________
Byers was also able to confirm that he viewed his assailant’s facial features
and heard the man’s voice. Id. at 143. See Commonwealth v. Fromal,
572 A.2d 711, 716 (Pa. Super 1990) (witness may testify to person’s identity
from voice alone). And, for the first time, Byers identified Harris by name.
N.T. Jury Trial, 3/3/15, at 143. Byers also positively identified Harris in the
courtroom as the individual “seated to the far right [wearing] a shirt and a
vest and a tie[.]” N.T. Jury Trial, 3/3/15, at 173. Defense counsel rigorously
cross-examined Byers, pointing out inconsistencies in the victim’s testimony
at two prior court hearings where he could only identify co-defendant Keith
Johnson, not Harris, by name. Byers admitted on cross-examination that at
the time of the incident he was not able to identify Harris. Id. at 183.
However, he testified that “there was [sic] a lot of anxiety and things going
on so [he] could only see certain images flashing through [his] head, but over
the last year [he’s] been able to think about what happened and remember
that night and [he] can clearly remember being able to look up and see what
people looked like.” Id. at 183.
Here, the jury, sitting as the fact finder, was free to believe all, part, or none
of the evidence against Harris. The jury listened to the testimony, weighed
the evidence, and concluded that Harris perpetrated the crimes in question.
We agree that this determination is not so contrary to the evidence as to shock
one’s sense of justice and will not reweigh the evidence. Accordingly, we
conclude that the trial court did not abuse its discretion in refusing to grant
relief on Harris’ weight challenge. Cf. Grahame, supra (Commonwealth
failed to present sufficient identification evidence to submit charges against
defendant to jury where sole identification witness, who had failed to identify
defendant in line-up, testified at preliminary hearing that all African Americans
looked alike and, although witness identified defendant on direct examination,
on cross-examination she testified that she did not get good look at defendant
during crime and was not sure she had ever seen defendant before other than
at preliminary hearing).
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J-S64020-19
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/7/2020
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J-S04021-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
RAYMOND DANIELS
Appellant No. 1618 EDA 2019
Appeal from the Judgment of Sentence Entered May 23, 2019
In the Court of Common Pleas of Bucks County
Criminal Division at No: CP-09-CR-0000832-2018
BEFORE: BENDER, P.J.E., STABILE, and MURRAY, JJ.
MEMORANDUM BY STABILE, J.: FILED APRIL 7, 2020
Appellant, Raymond Daniels, appeals from the May 23, 2019 judgment
of sentence imposing an aggregate 30 to 60 years of incarceration for robbery,
burglary, conspiracy,1 and related offenses.2 We affirm.
On the evening of August 17, 2017, Appellant and several
coconspirators conducted surveillance of the victims’ home in Newtown
____________________________________________
1 18 Pa.C.S.A. §§ 3701, 3502, and 903.
2 These include unlawful possession of a firearm (18 Pa.C.S.A. § 6105),
criminal trespass (18 Pa.C.S.A. § 3503), theft by unlawful taking (18 Pa.C.S.A.
§ 3921), theft by extortion (18 Pa.C.S.A. § 3923), receiving stolen property
(18 Pa.C.S.A. § 3925), false imprisonment of a minor and false imprisonment
(18 Pa.C.S.A. § 2903), criminal coercion 18 Pa.C.S.A. § 2906), terroristic
threats (18 Pa.C.S.A. § 2706), unlawful restraint of a minor (18 Pa.C.S.A.
§ 2902), recklessly endangering another person (18 Pa.C.S.A. § 2705), simple
assault (18 Pa.C.S.A. § 2701), and access device fraud (18 Pa.C.S.A. § 4106).
J-S04021-20
Township, Bucks County.3 During the late hours of August 20, 2017 and the
early morning hours of August 21, 2017, Appellant and his cohorts returned.
They entered the home at 2:00 a.m. on August 21, 2017 carrying firearms
and wearing masks, gloves, and dark clothing. Sisters Elle Nadav, aged 25,
and C.N., aged 12, were in the home, along with their parents, Jonatan and
Emily Nadav, and their maternal grandmother, Manya Guravich. A third,
sister, Jade, was away at college.
Upon gaining entry to the home through a window, two of the gunmen
approached Elle, woke her, and pointed guns at her. The gun barrels touched
her forehead. The gunmen forced Elle to lie on the floor on her stomach and
then bound her hands with shoelaces. They told her they were there for
“Yanni,” Jonatan’s nickname. Elle screamed and asked that they not harm
Manya or C.N. One gunman remained with Elle and located and took her
wallet and cell phone. Another gunman woke up Manya, forced her out of
bed, and retrieved a watch from a drawer in Manya’s room. English is not
Manya’s first language, and she was unable to understand what the gunman
said to her.
A third gunman woke C.N. and forced her out of bed. The gunman led
C.N. to her parents’ room and forced her to wake them up. Thus, Jonatan
and Emily woke to the sight of their 12-year-old daughter being held at
____________________________________________
3 We are summarizing the facts as set forth on pages 1-5 of the trial court’s
September 6, 2019 opinion.
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J-S04021-20
gunpoint. The gunmen knew the family had a safe in their home, and they
ordered Emily and Jonatan to tell them where their safe was, and open it.
They threated to shoot and kill C.N. if Emily and Jonatan refused. Eventually
Jonatan, who owns several clothing stores in the Philadelphia area, opened
the safe at gunpoint. The gunmen removed a large amount of jewelry and
$50,000 in cash from the safe. In all, the gunmen stole more than $300,000
in property and cash from the Nadav home.
Emily, Jonatan, and Manya were forced into a closet and warned that
they would be killed if they called the police. Before departing, the gunmen
told Elle where her sister Jade went to college and described Jade’s car. They
told Elle that Jade would be killed if the family called the police. Emily called
the police after the gunmen left.
Later that morning, Appellant and his girlfriend went to five different
locations and used credit cards stolen from the Nadavs. Appellant also wrote
a stolen check, for $5,500.00, to his girlfriend. Also on that morning,
Appellant exchanged text messages with one of his coconspirators. The
message from the coconspirator included emoji depicting moneybags and an
arm making a muscle. The coconspirator wrote, “I’m excited as shit, bro.”
Appellant responded, “Me too, man. That watch worth 34 grand online.”
On November 14, 2017, the Commonwealth charged Appellant and his
coconspirators with numerous offenses. On January 24, 2019, during jury
selection, Appellant pled guilty to robbery, burglary, conspiracy, and the
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J-S04021-20
offenses listed in footnote 2 above. Sentencing followed immediately, and the
trial court imposed an aggregate 40 to 80 years of incarceration. Appellant
filed a timely motion for reconsideration on February 1, 2019. The trial court
granted reconsideration, and on May 23, 2019 sentenced Appellant 30 to 60
years of incarceration. That sentence is comprised of three consecutive
mandatory sentence of 10 to 20 years for robbery, burglary, and conspiracy
to commit robbery. The trial court imposed concurrent sentences for unlawful
possession of a firearm, false imprisonment of a minor, false imprisonment,
simple assault, and access device fraud. The court imposed no further penalty
on the remaining offenses.
Appellant filed this timely appeal on May 29, 2019. In his sole assertion
of error, he claims the trial court abused its sentencing discretion in imposing
30 to 60 years of incarceration. Before we address the merits of a challenge
to the trial court’s sentencing discretion, we must discern whether Appellant
has properly placed that issue before us. To do so, an appellant must (1) file
a timely notice of appeal; (2) preserve the issue in a motion to reconsider or
modify the sentence; (3) include in his brief a concise statement of reasons
relied upon for allowance of appeal (Pa.R.A.P. 2119(f)); and (4) explain in the
concise statement that there is a substantial question as to whether the trial
court’s sentence was appropriate. Commonwealth v. Caldwell, 117 A.3d
763, 768 (Pa. Super. 2015), appeal denied, 126 A.3d 1282 (Pa. 2015).
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J-S04021-20
Instantly, Appellant did not file a post-sentence motion after the trial
court’s May 23, 2019 sentence. Further, he fails to present a substantial
question for our review. To demonstrate a substantial question, the appellant
must show that the trial court’s sentence was inconsistent with the sentencing
code or contrary to the norms underlying the sentencing process.
Commonwealth v. Titus, 816 A.2d 251, 255 (Pa. Super. 2003). A generic
assertion of excessiveness does not raise a substantial question.
Commonwealth v. Christine, 78 A.3d 1, 10 (Pa. Super. 2013), affirmed,
125 A.3d 394 (Pa. 2015). An allegation that the trial court failed to give
adequate weight to mitigating circumstances does not raise a substantial
question. Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013);
Commonwealth v. Moury, 992 A.2d 162, 175 (Pa. Super. 2010).
In his Pa.R.A.P. 2119(f) statement, Appellant states that the trial court
imposed “a manifestly excessive sentence resulting in too severe a
punishment under all the circumstances, particularly when considering that
Appellant pled guilty and presented mitigating evidence at the time of
sentence.” Appellant’s Brief at 8. This is both a bald assertion of
excessiveness and a claim that the trial court gave inadequate weight to
mitigating factors. 4 Appellant has failed to raise a substantial question, and
____________________________________________
4 We discern the existence of a substantial question solely by reference to the
2119(f) statement. Commonwealth v. Goggins, 748 A.2d 721, 726-27 (Pa.
Super. 2000), appeal denied, 759 A.2d 920 (Pa. 2000). In the argument
-5-
J-S04021-20
we therefore do not reach the merits of his argument. Were we to address
the merits, we would affirm the sentence based on the trial court’s September
6, 2019 opinion. We direct that a copy of that opinion be filed herewith.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/7/2020
____________________________________________
section of his brief, Appellant elaborates on his educational history, work
history, and two dependent children. Nothing in the argument section would
alter our conclusion that Appellant has failed to raise a substantial question.
-6-
Circulated 03/27/2020 02:27 PM
IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY,
PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA : No. CP-09-CR-0000832-2018
[1618 EDA 2019]
v.
RAYMOND ANTHONY DANIELS
OPINION
The Defendant, Raymond Anthony Daniels, has filed an appeal from the
judgment of
sentence entered on May 23, 2019 following his guilty plea on January 24, 2019.
On appeal, the
Defendant challenges the discretionary aspects of sentence.
On November 14, 2017, the Defendant was charged with multiple offenses in
connection
with a home invasion robbery that occurred at 23 Wellington Road, Newtown
Township, Bucks
County, the residence of Jonatan and Emily Nadav and their family.
Co-defendant Sadeen Jones
(Jones) was charged on November 16, 2017. Co-defendant Brandon Davis
(Davis), was charged
on January 2, 2018. Other individuals involved in this incident remain unidentified.
The facts underlying the Defendant's convictions were summarized at the time of
the guilty
pleas as follows:
On August 15 of 2017 the [D]efendant, along with co-
defendants Brandon Davis and Sadeem [sic] Jones traveled to 23
Wellington Road in Newtown Township, Bucks County, for the
purpose of scoping out, for lack of a better term, the location at 23
Wellington Road, Newtown, Bucks County. That was the home of
the Nadays, who are pictured in Commonwealth's Exhibit C-2 . . . .
That was done at night. . [a]nd would have been proven
. .
at trial through cellular telephone records as well as text messaging
between the defendants.'
[During] the late evening hours of August 20, 2017, into
. . .
the early morning hours of August 21, 2017, the same individuals:
The [D]efendant Raymond Daniels, Brandon Davis and Sadeem
[sic] Jones, as well as others unidentified in this case traveled . . .
together from Philadelphia to the same location, 23 Wellington
Road in Newtown, Bucks County.
***
[O]n that day . . . three of the individuals were masked,
dressed in dark clothing, gloved and armed with guns, and entered
23 Wellington Road, Newtown Township, Bucks County, at
approximately 2:00 o'clock in the morning.
At the time that they entered there were five individuals
. . .
home, five members of that residence. [Twelve] -year -old [C.N.] . .
. [twenty -five] -year -old Elle Nadav
. . . Emily Nadav, who is their
mother . . Jonatan Nadav
. . as well as Manya Guravich, who
. .
is
the grandmother of the two sisters I referred to.
[Jade] . . was not home. She was away at college. She is
.
the third sister in the Nadav family.
The defendants entered. There were two identified possible
points of entry. . . a basement window in the back of the house
.
. . .
[and] ... a front window at the front of the house near the front door
.
where the screen had been broken off
***
The individuals then entered the location and two of the
individuals went downstairs into the basement where Elle Nadav
had been staying . . . [in] a basement apartment . . . .
She would testify
. . . that she was in bed and awoken
by the
sound of loud feet coming down the steps. As she sat up in her bed,
there were two men in all black holding guns. The guns were then
pointed at her head and she said she could actually feel the barrel of
-
the gun against her forehead both guns against her forehead.
She began to scream and was told to, quote, shut the f[---]
up. . She was then removed from her bed, told to get on the ground
. .
on her stomach. [She complied] ... and was [then] tied with a
shoelace at her wrists.
' Cell site data and text messages established that the
conspirators traveled to the victims' residence six days before
the home invasion robbery. Text messages between the conspirators also
established that they planned to go to the
victims' residence on the date the offenses were committed. N.T. 1/24/19, at 125-126.
2
One of the individuals then received a phone call. Elle Nadav
would testify that she then heard that individual indicate, "We are
in. it
That individual left her room while the second gunman
remained with her.
She would testify . that what was told to her was they were
. .
there for Yanni, the nickname of her father, Jonatan Naday. She
would testify that she cried and screamed and asked that nothing
happen to her 12 -year -old sister, [C.N.], or her grandmother.
She would testify that at that point the one individual
. . .
remained with the gun pointed at her, took her wallet and took her
cell phone so she was unable to call for help.
At that point . . . evidence would show that a second
individual -- it is unknown if it was the same person who had
previously been in Elle's room or not -- had gone to Manya
Guravich's room. Manya Guravich is the grandmother of Elle and
[C.N.] . . . .
She was asleep in her bedroom which is on the second level
of the townhome at 23 Wellington.
She would testify that an individual woke her up and began
not English and she has
trouble hearing. So she would testify she could not understand what
was being screamed at her and kept trying to tell the gunman who
had a gun pointed at her that she couldn't understand.
She would testify that she, too, was forced out of bed, told to
put on a pair of pants. She would testify that the gunman then opened
a drawer next to her bed and removed a watch that she had placed
there.
She would testify that she then began to worry about [C.N.],
whose bedroom was right next to hers. She would testify that she
was then led out of the room at gunpoint towards her daughter, Elle,
and son-in-law, Jonatan's room.
She would testify as she did so, she looked into [C.N.]'s room
to check on her, but [C.N.] was not there.
[E]vidence would also indicate that [C.N.] was asleep in her
room. She was, too, awokened [sic] by a gunman, a third gunman.
Again, I don't know if this was the gunman from the basement, but
it was a third individual in the house with a gun.
[C.N.] was awoken and forced out of her bed. [C.N.] was
marched . . at gunpoint into her parents' bedroom. At this point
.
[C.N.] was told to wake up her parents.
3
You would hear evidence by way of testimony from
. . .
Emily and Jonatan, that they then heard their 12 -year -old daughter
[C.N.] begging them to wake up and crying. As they awoke, they
saw the gunman with a gun pointed at their daughter's head.
They sat up in bed . At this point [C.N.] was put on the
. .
ground on the bed side next to her father. The other two, Emily and
Jonatan, were ordered at that point to tell them where the safe was.
Emily and Jonatan just began to start yelling things about
jewelry that was laying out, wallets that were laying out, directing
their captor at that point to anything that they could see of value for
him to take.
The captor specifically asked for a safe, acknowledging he
knew there was a safe in the house despite Jonatan's initial attempt
to deny that. At that point . Emily was marched into the closet to
. .
open the safe.
Emily would testify that whether it be nerves or eyesight or
the fact that it was dark, she wasn't able to do so.
So then Jonatan was marched into the closet and Jonatan,
too, was forced to open that safe.
Your Honor, I did leave out a critical point, and that is this:
When the two awoke in bed and watched this gimman with a gun to
12 -year-old [C.N.]'s head, the gunman threatened that if they didn't
obey his orders, that 12 -year -old [C.N.] would be shot and killed. At
this point . . the safe was emptied.
.
You would .. hear evidence that Jonatan Nadav at that
.
point had a significant amount of jewelry in that safe as well as cash.
.. close to $50,000 worth of cash.
.
He was, by the way, a store owner. I believe he owns more
than one . store in Philadelphia for clothing. Emily, Jonatan and
. .
Manya were all placed in the closet. They were told not to call the
police or they would be killed. [T]hey remained there in the closet
for several seconds until Emily did, in fact, call the police.
[O]ne of the individuals who had been on the second floor in
the Nadav's bedroom went back downstairs to Elle's bedroom,
retrieved the third gunman who had been there the entire time with
Elle Naday.
And Elle would say that it was approximately 20 minutes
that that encounter took place. He told the third gunman who was
with Elle Nadav that they were done and they could go.
4
They then, however, turned to Elle and told her that if the
police were called, the entire family would be killed. They named
the third sister .. by name. They told Elle they knew
.
where she
went to college, and listed the college that she went to. They told
Elle they knew the type of vehicle that she drove and actually stated
what the type of vehicle she drove was.
[A]11 in all there was . . . over $40,000 worth of cash, a
number of expensive jewelry pieces including, I believe, six carat
diamond engagement ring and wedding ring, purses and luggage, a
number of items, all in all totaling approximately $300,000. . By
. .
way of a property receipt it is $305,976.
***
[The Defendant] returned to Philadelphia in the vehicle with
his co-defendants.
At that point . he did go directly to his girlfriend's home
.
in Philadelphia, and that was an individual by the name of Marlon
Burton. He woke Marlon Burton up, she would say approximately
3:00, 3:30 in the morning. The two then went to five separate
locations and utilized credit cards that had been stolen from the
Nadav household.
To be clear, the [D]efendant indicated they weren't his, but
didn't indicate, at that point, at least, that they had come from a home
invasion that just occurred. After that they returned to Miss Burton's
home where the [D]efendant removed a check from the wallet that
he had stolen as well.
The check he then wrote to Marlon Burton in the amount of
$5,500.
N.T. 1/24/19, at 99-110.
The morning after the offenses were committed, the Defendant and Jones exchanged
text
messages. N.T. 1/24/19, at 128. In text messages exchanged between the Defendant and
Jones,
the Defendant made reference to a Rolex watch which had been taken during the
course of the
robbery. In describing the text message exchange, the prosecuting attorney stated,
Defendant Sadeem [sic] Jones asked this defendant, Raymond
Daniels, "You still up, bro?" There is a emoji or a little symbol of a
money bag and an arm making a muscle following that question.
This defendant responds, "Yeah." Sadeem [sic] Jones then indicates,
"I'm excited as shit, bro." This defendant responds, "Me, too, man.
That watch worth 34 grand online."
5
N.T. 1/24/19, at 135-136.
In another text message exchange, the Defendant discussed the status of the police
investigation with Davis. In that exchange, Davis told the Defendant, "They got ya number. They
just DNT know who you are." The Defendant advised Davis that he had changed his telephone
number using an "app" and instructed Davis how to use the app to change his number. N.T.
1/24/19, at 130-132.
Of the more than $300,000 of stolen property, only one item was recovered. That item, a
piece of luggage, was found in the Defendant's home. N.T. 1/24/19, at 129-130.
On November 7, 2018 and December 19, 2018, the Honorable Raymond F. McHugh, heard
pretrial motions relating to all three defendants. On January 14, 2019, Judge McHugh entered an
order along with finding of fact and conclusions of law wherein he denied the defendants' motions
to suppress evidence and motions to sever the cases. Judge McHugh granted the motions to sever
the charge of Possession of a Firearm Prohibited, 18 Pa.C.S. §6105(a)(1), filed by the Defendant
and Jones.
Thereafter, the Commonwealth filed notice of its intent to invoke the ten-year mandatory
minimum sentences pursuant to 42 Pa.C.S. §9714 for second and subsequent convictions for a
crime of violence upon the Defendant's conviction for Robbery in violation of 18 Pa.C.S.
§3701(a)(1)(ii), Robbery in violation of 18 Pa.C.S. §3701(a)(1)(iii), Burglary in violation of 18
Pa.C.S. §3502(a)(1)(i), and/or Criminal Conspiracy to commit Robbery and/or Burglary in
violation of 18 Pa.C.S. §903.
On January 21, 2019, the day before trial was to commence, the Defendant called
Commonwealth witness Marlon Burton, his former girlfriend and a co-defendant with regard to
the Access Device Fraud charge. During that conversation, the Defendant advised Ms. Burton that
6
he had entered a guilty plea. Ms. Burton asked the Defendant if that meant she did not have to
appear for trial. The Defendant responded, "That's right. That's the only reason I did it." N.T.
1/24/19, at 123-124.
On January 22, 2019, the jury selection began.
On January 24, 2019, the Defendant entered a guilty plea to the following criminal
offenses:
Robbery (threatening another with/intentionally putting Jonatan
Nadav and/or Emily Nadav and/or Elle Nadav and/or C.N.
and/or Manya Gurevich in fear of serious bodily injury), 18
Pa.C.S. §3701(a)(1)(ii), a felony of the first degree;
Robbery (threatening to commit a felony of the first or second
degree), 18 Pa.C.S. §3701(a)(1)(iii), a felony of the first degree;
Robbery (inflicting, threaten with or intentionally put in fear of
immediate serious bodily injury), 18 Pa.C.S. §3701(a)(1)(iv), a
felony of the second degree;
Burglary (overnight accommodation, person present, and commits,
attempts, threatens to commit a bodily injury crime), 18 Pa.C.S.
§3502(a)(1)(i), a felony of the first degree;
Criminal Conspiracy to commit Robbery, Burglary and related
offenses, 18 Pa.C.S. §903;
Possession of a Firearm Prohibited, 18 Pa.C.S. §6105(a)(1), a felony
of the first degree; 2
Criminal Trespass (breaking into occupied structure), 18 Pa.C.S.
§3503(a)(1)(ii), a felony of the second degree;
Theft by Unlawful Taking (firearm, jewelry, credit cards, currency
and other property), 18 Pa.C.S. §3921(a), a felony of the second
degree;
2The Defendant has a prior conviction for Robbery in violation of 18 Pa.C.S. §3701(a)(1)(ii) (inflicting or threatening
another with or intentionally putting another in fear of immediate serious bodily injury), an enumerated offense under
18 Pa.C.S. §6105(b) (Persons Not to Possess Firearms). Exhibit C-1; N.T. 1/24/19, at 98-99.
7
Theft by Extortion (threatening to inflict harm), 18 Pa.C.S.
§3923(a)(7), a felony of the second degree;
Receiving Stolen Property (firearm, jewelry, credit cards, currency
and other property), 18 Pa.C.S. §3925(a), a felony of the second
degree;
False Imprisonment of a Minor (by a person not a parent), 18 Pa.C.S.
§ 2903(b), a felony of the second degree;
False Imprisonment, 18 Pa.C.S. §2903(a), a misdemeanor of the
second degree;
Criminal Coercion (threat to commit a felony/act with felonious
intent), 18 Pa.C.S. §2906(a)(1), a misdemeanor of the first
degree;
Terroristic Threats (threat to commit crime of violence), 18 Pa.C.S.
§2706(a)(1), a misdemeanor of the first degree;
Unlawful Restraint of Minor (by a person not a parent/risk of serious
bodily injury), 18 Pa.C.S. §2902(b)(1), a felony of the second
degree;
Recklessly Endangering Another Person (Jonatan Nadav and/or
Emily Nadav and/or Elle Nadav and/or C.N. (a minor) and/or
Manya Gurevich), 18 Pa.C.S. §2705, a misdemeanor of the
second degree;
Simple Assault by Physical Menace (Jonatan Nadav), 18 Pa.C.S.
§2701(a)(3), a misdemeanor of the second degree;
Simple Assault by Physical Menace (Emily Nadav), 18 Pa.C.S.
§2701(a)(3), a misdemeanor of the second degree;
Simple Assault by Physical Menace (Elle Nadav), 18 Pa.C.S.
§2701(a)(3), a misdemeanor of the second degree;
Simple Assault by Physical Menace (C.N.), 18 Pa.C.S. §2701(a)(3),
a misdemeanor of the second degree;
Simple Assault by Physical Menace (Manya Gurevich), 18 Pa.C.S.
§2701(a)(3), a misdemeanor of the second degree;
Access Device Fraud, 18 Pa.C.S. §4106(a)(1)(i), a felony of the
third degree.
8
Prior to sentence being imposed, this Court was advised that the Defendant was adjudicated
delinquent in 2009 for Possessing Instruments of Crime and for Firearms not to be carried without
a License. In 2012, he was adjudicated delinquent for Retail Theft. On July 6,
2011, he entered a
negotiated guilty plea pursuant to which the Commonwealth agreed not to invoke the applicable
five-year mandatory minimum. N.T. 1/24/19, at 121-122. The Defendant plead guilty to Robbery
- threatens/intentionally puts another in fear of immediate serious bodily injury, a felony of the
first degree, in violation of 18 Pa.C.S. §3701(a)(1)(ii), Criminal Conspiracy to
commit Robbery -
inflicting serious bodily injury, a felony of the first degree in violation of 18 Pa.C.S.
§903(a)(1),
and Possessing Instruments of Crime, a misdemeanor of the first degree, in violation
of 18 Pa.C.S.
§907(a) and was sentenced to two and a -half to six years on each count, said
sentences to run
concurrent with one another. Exhibit C-1. The facts underlying those convictions were
summarized as follows:
On July 11 of 2010, at approximately 10:40, the defendant,
along with another individual, approached the victim, Dennis
Williams, on the street in the area of 2115 West Stella -- S TELL
A -- Street in Philadelphia.
The defendant and his co-defendant were both armed with a
firearm. The defendant and his co-defendant approached the victim
and demanded him to, quote, give up everything. The victim then
handed over his wallet and keys and either the defendant or the co-
defendant -- it is unclear from the reports, Your Honor -- then took
from the waistband of the victim a .40 caliber Smith and Wesson
handgun.
On July 15 of 2010, officers of the Philadelphia Police
Department were called to a location on Van Pelt Street -- V A N P
E L T -- Street. They responded there for [an unrelated matter].
When they responded, the defendant was in the location and they
recovered under a cushion at that location the stolen firearm from
the July 11, 2010, incident.
9
N.T. 1/24/19, at 117-118. At the conclusion of the sentencing hearing, the Defendant was
sentenced to an aggregate term of incarceration of forty to eighty years.
On February 1, 2019, the Defendant filed a motion for reconsideration of sentence. On
May 23, 2019, a hearing was held. At the conclusion of the hearing, the original sentence was
vacated and the Defendant was resentenced to an aggregate term of incarceration of thirty to sixty
years. For the armed robbery of Jonatan Nadav, Emily Nadav, Elle Nadav, C.N. and Manya
Gurevich (count 1), the Defendant was sentenced to the mandatory minimum sentence of ten to
twenty years incarceration. For the crime of Burglary (count 10), the Defendant was sentenced to
the mandatory minimum sentence of ten to twenty years incarceration. For the crime of
Criminal
Conspiracy to commit Robbery and Burglary (count 2), the Defendant was sentenced to the
mandatory minimum sentence of ten to twenty years incarceration. These sentences were imposed
to run consecutive to one another for an aggregate term of incarceration of thirty to sixty years.
For the crime of Possession of a Firearm Prohibited (count 9), the Defendant was sentenced to
five
to ten years incarceration. For the crime of False Imprisonment of a Minor, C.N., (count 16), the
Defendant was sentenced to five to ten years incarceration. For the crime of False
Imprisonment
of Jonatan Nadav, Emily Nadav, Elle Nadav and Manya Gurevich (count 24), the
Defendant was
sentenced to one to two years incarceration. For the crimes of Simple Assault of
Jonatan Nadav,
Emily Nadav, Elle Nadav, C.N., and Manya Gurevich (counts 30-34), the
Defendant was
sentenced to one to two years incarceration on each count. For the crime of Access Device
Fraud
(count 18), the Defendant was sentenced to one to two years incarceration. These
sentences were
all imposed to run concurrent to the sentence imposed on the Robbery
conviction. No further
penalty was imposed on the remaining ten counts. Restitution was ordered in the
amount of
10
$305,976.00 (joint and several). The Defendant was determined not to be an eligible offender
under the Recidivism Risk Reduction Incentive Act, 61 §4501 et seq. N.T. 5/23/19, at 71-73.
On May 23, 2019, new counsel was appointed to represent the Defendant for purposes of
direct appeal. On May 29, 2019, the Defendant filed notice of appeal. By order dated June 14,
2019, the Defendant was directed to file a Concise Statement of Errors Complained of on Appeal
(Statement) within twenty-one days of the entry of that order. On June 27, 2019, the Defendant
filed a timely Statement.
The Defendant challenges the discretionary aspects of sentence. The standards for
evaluating challenges to the discretionary aspects of sentence are well settled. "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." Commonwealth v. Bullock, 170 A.3d 1109,
1123 (Pa.Super. 2017) (quotation marks and citations omitted). A mere "error in
judgment" does
not constitute an abuse of discretion. Id. "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." Id.
The Sentencing Code requires that, when imposing a sentence, a court must consider the
protection of the public, the gravity of the offense as it relates to the impact on the victim and the
community, the defendant's rehabilitative needs and the sentencing guidelines. 42 Pa.C.S.
§9721(b). A sentencing court must also "make as a part of the record, and disclose in open court
at the time of sentencing, a statement of the reason or reasons for the sentence imposed." Id.
However, although the record as a whole must reflect due consideration of the statutory factors, a
sentencing court "is not required to parrot the words of the Sentencing Code, stating every factor
that must be considered under 9721(b)." Commonwealth v. Bullock, 170 A.3d at 1126
(quotation
11
marks and citation omitted). Rather, the record as a whole must reflect the sentencing court's
consideration of the facts of the case and the defendant's character. Commonwealth v. Crump,
995 A.2d 1280, 1283 (Pa.Super. 2010). "In particular, the court should refer to the
defendant's
prior criminal record, his age, personal characteristics and his potential for rehabilitation."
Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa.Super. 2002).
In imposing sentence, this Court considered all of the factors set forth in the Sentencing
Code including the protection of the public, the gravity of the offense, the history, character,
condition and rehabilitative needs of the Defendant and the sentencing guidelines and concluded
that a very substantial term of incarceration was required. N.T. 1/24/19, at 176-178, 205. As this
Court noted at the time sentence was imposed, the mandatory sentencing provisions of the
Sentencing Code required imposition of three ten-year mandatory minimum sentences. These
mandatory sentences were reflected in the sentencing guidelines. The guidelines for the crimes of
Possession of a Firearm Prohibited, Recklessly Endangering Another Person and Simple Assault
called for the maximum sentence allowable by law in the standard range. N.T. 1/24/19, at 176-
178. In fashioning the sentence, this Court concluded that the offenses to which the
Defendant
pled guilty were separate criminal offenses for which separate sentences could be imposed.
In analyzing those offenses, this Court noted that although there was only one count of
robbery, five separate robberies occurred. N.T. 1/24/19, at 198. The Court also noted that the
Burglary charge only required the presence of one person at the time the offense was committed,
but here, five people were present, three generations of a family that included a minor and a
senior.
N.T. 1/24/19, at 186. This Court also found the nature of the Criminal Conspiracy to be
of
significance, noting that the Criminal Conspiracy the Defendant entered involved not just one
12
criminal objective but multiple criminal objectives and that the objectives of that conspiracy were
particularly violent and dangerous. N.T. 1/24/19, at 199-200.
In considering the nature of the offenses, this Court noted that this home invasion
robbery
was a sophisticated operation which required substantial preplanning and
preparation. The
conspirators scouted the location, chose to strike at 2:00 a.m. (a time when the occupants would
be most easily located and at their most vulnerable), outfitted themselves with dark
clothing,
gloves, and masks and quietly and efficiently gained entry. Each conspirator was armed and
proceeded immediately to a predesignated location in the home to effectively and efficiently isolate
and control the five people in the household. N.T. 1/24/19, at 178-181.
The force utilized was extreme. The conspirators threatened the lives of each family
member and demonstrated by the use of their handguns that they had the means to carry out
those
threats. Each member of the family was victimized in a different location in the home
by different
perpetrators who utilized different means. The twenty-five year old daughter awoke to find two
armed men in her bedroom. Those gunmen placed the barrels of their weapons
against her
forehead before they put her on the floor and bound her wrists. She was held captive
in her
bedroom throughout the incident. One of the gunmen then took her wallet and cell phone.
Before
the perpetrators left the residence, this daughter was told that if she called the police,
the family
would be killed. This threat included another sister who was not living at the
residence. To
demonstrate the seriousness of the threat, the conspirators identified the sister by name
and
accurately identified where she attended college and the type of vehicle she drove.
The
grandmother also awoke to find a gunman in her bedroom who immediately began to
scream at
her. She was forcibly removed her from her bedroom at gunpoint and was taken to the
bedroom
of Jonatan and Emily Naday. The gunman holding the grandmother at gunpoint, stole a
watch
13
from the drawer of a bedside table. The twelve -year -old daughter also awoke to find a
gunman in
her bedroom. She was also removed from her bedroom at gunpoint and taken to her
parents'
bedroom. Finally, the parents awoke to find a gunman pointing a gun at their twelve-year-old
daughter's head. That gunman threatened to shoot the child if the parents did not comply with his
demands. After the safe was opened and the items of value were removed, the family was put in
the closet and was instructed not to call the police. They were told if they called the police, they
would be killed. N.T. 1/24/19, at 178-185,192 -194, 201.
This Court also discussed how the nature of the offenses reflected on the Defendant's
character and his amenability to rehabilitation. N.T. 1/24/19, at 183-185. This Court
specifically
noted that, despite the extreme violence and apparent raw fear and emotional trauma
inflicted, the
Defendant's emotional response was not one of remorse or regret. Rather, he expressed "glee"
and "excitement" following these horrific events. N.T. 1/24/19, at 185-186, 192. This
Court also
took into account the nature of the individuals with whom the Defendant chose to conspire,
noting
that the Defendant was aware of their violent character and still made a conscious
decision to
participate. This Court also noted that, given the number of conspirators, their violent
tendencies,
the fact that they were all armed, and the unpredictability of victims' responses to
their physical
incursion, the Defendant knew or should have known that there was a substantial risk
that the
situation could have gotten out of control and someone could have died or have been
seriously
injured. N.T. 1/24/19, at 183, 200.
In imposing sentence, this Court also considered the substantial impact violent
home
invasions by multiple armed and masked subjects have on the victims and the community.
N.T.
1/24/19, at 195-197. This Court also took into account that the Defendant had a
chance to
ameliorate the impact these crimes had on the victims and the community by cooperating
with
14
police so as to assist in the prosecution of the individuals identified as having
participated in the
crimes as well as identifying those who have not been identified and who remain at
large. The
Defendant's cooperation could have significantly decreased the fear the victims and
the
community were experiencing. This Court found the Defendant's unwillingness to
mitigate the
damage he caused to be a relevant factor in considering his amenability to
rehabilitation and in
evaluating whether his statements of remorse were sincere. This Court found that his
decision
demonstrated a lack of concern for the safety of the victims, a lack of concern for the
safety of his
girlfriend -a cooperating witness - and a lack of concern for the safety of the community. This
Court therefore found his statements of remorse to be hollow and amenability to
rehabilitation to
be lacking. N.T. 1/24/19, at 187-189; N.T. 5/23/19, at 58.
In considering the Defendant's history, character, condition and rehabilitative
needs, this
Court found that, despite the intervention of both the juvenile and adult criminal
justice system,
the Defendant's criminally violent behavior had escalated from Possessing
Instruments of Crime
and for Firearms not to be carried without a License, to armed Robbery involving
one accomplice,
and finally to armed home invasion Robbery involving multiple actors and
multiple victims. N.T.
1/24/19, at 186, 192. In light of this escalation, this Court concluded that the
sentence imposed
was necessary to prevent the Defendant from engaging in future acts of
violence. N.T. 1/24/19, at
205.
In imposing sentence, this Court considered all of the factors set
forth in the Sentencing
Code including the protection of the public, the gravity of the offense,
the history, character,
condition and rehabilitative needs of the Defendant, the applicable mandatory sentences and the
sentencing guidelines. This Court's decision was based on the evidence presented without
partiality, prejudice, bias or ill will. The reasons for the sentence were placed on
the record as
15
required. There is therefore no basis to conclude that the sentence imposed constituted an abuse
of discretion or was otherwise "excessive."
The Defendant argues that "[t]he sentence was excessive considering [the Defendant]'s
remorse, guilty plea and adjustment following parole." Statement, ¶ 1. He argues that
"[s]entencing [the Defendant] consecutively raised the aggregate sentence to, what appears upon
its face to be an excessive level considering [the Defendant]'s background and
criminal conduct
at issue in this case." Statement, ¶ 2. It is well -settled that a claim that a court did not weigh
the
factors as a defendant might wish is not sufficient to support a claim for appellate
relief.
Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa.Super. 2014) (" [W]e have held that a claim that
a court did not weigh the factors as an appellant wishes does not raise a
substantial question.").
The Defendant is therefore not entitled to relief based on the assertion that more
weight should
have been given to the factors cited by the Defendant.
With regard to the issue of consecutive sentences, it is well -settled that a bare
challenge
that the trial court erred in imposing consecutive sentences does not raise a substantial
question.
Commonwealth v. Moury, 992 A.2d 162, 171-72 (Pa.Super. 2010). Only in extreme
circumstances will imposition of consecutive sentences raise a substantial sentence, such as
where
the aggregate sentence is "unduly harsh, considering the nature of the crimes and
the length of
imprisonment." Id. In light of the facts and circumstances involved in this case,
consecutive
sentences cannot be deemed to be "unduly harsh."
The Defendant next argues that this Court failed to consider the Defendant's
"remorse,
guilty plea and adjustment following parole," his "background and criminal
conduct," his
"rehabilitative needs," his "adjustment to the community upon release from a state
sentence
completed in 2014, his strong family background and employment," and the fact that he
"entered
16
a guilty plea." Statement, ¶¶ 1-4, 6. The Defendant's assertion that these factors were not
considered is belied by the record. As explained above, this Court considered whether the
Defendant was remorseful, his background and criminal conduct, and his rehabilitative needs. A
review of the record also demonstrates that this Court considered his adjustment to
the community
following his release on his prior robbery conviction, his family relationships and his
employment.
N.T. 1/24/19, at 190-192. The record also reflects that this Court found the
Defendant's age and
the fact that the Defendant entered a guilty plea as a mitigating factor in his
favor. N.T. 1/24/19,
at 195; N.T. 5/23/19, at 70. This Court also found the evidence presented at the
reconsideration
hearing regarding the Defendant's relationship with his mother and his training
education and
employment as a dental technician to be of mitigating value. N.T. 5/23/19, at 70. As stated
above,
the fact that this Court may not have weighed the factors as the Defendant might
wished is not a
sufficient basis to warrant relief.
Finally, the Defendant claims that "[t]he court erred in conditioning the length of
[the
Defendant]'s sentence upon his ability and/or willingness to implicate his
co-defendants."
Statement, ¶ 5. The sole basis for objecting to consideration of the Defendant's lack of
cooperation
was that "there could be other reasons for his failure to disclose."3 N.T.
1/24/19, at 133. This
claim lacks merit. That there may be alternative explanation for a person's conduct
is not a basis
to exclude relevant evidence. Moreover, the Defendant had the
opportunity to present evidence
regarding his reasons and, in fact, did so. The Defendant testified that he chose
not to provide
information about the crime of the individuals involved in its commission because he was
"scared
for [his] family's life" and that he didn't want them to have to "watch over their
shoulder's"
3 The Defendant offered no other legal basis to support this claim at the time of
sentencing, in his motion for
reconsideration of sentence or in his Statement. The Defendant may not now raise a new
theory to support his
objection. Commonwealth v. Duffy, 832 A.2d 1132, 1136 (Pa.Super. 2003).
17
because of what he did in a courtroom. N.T. 1/24/19, at 164. The Defendant stated that
he did not
want to put them in "harm's way" when he would not "be there to protect them...."
N.T. 1/24/19,
at 165. This Court considered this testimony but did not find the
Defendant's explanation of
sufficient weight to overcome other considerations. Specifically, this Court noted that,
while his
cooperation would have been a mitigating factor for purposes of sentencing, his refusal to
provide
any information regarding the crimes or those involved in their commission and
his reason for that
decision was relevant and admissible to establish the dangerous nature of those
with whom he
chose to conspire, the degree of his professed remorse, the degree to which he was
willing to accept
responsibility and his rehabilitative needs. N.T. 1/24/19, at 132-135, 194-195,
212-213; N.T.
5/23/19, at 58. Since the "other reasons" were presented and properly considered,
the Defendant
suffered no prejudice as a result of this Court's ruling.
For the reasons set forth above, this Court finds the Defendant's claims to be
without merit.
BY THE COURT:
Date DIANE E. GIBBONS, J.
18
Antonetta Stancu, Chief Deputy District Attorney
Bucks County District Attorney's Office
100 N. Main Street
Doylestown PA 18901
Wm. Craig Penglase, Esquire
18 North Main Street, Suite 100
Doylestown PA 18901
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 5 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
WESLEY WAYNE WILLIAMS,
Petitioner-Appellant,
v. No. 00-6329
(D.C. No. 99-CV-1534-M)
STEVE HARGETT, Warden, (W.D. Okla.)
Respondent-Appellee.
ORDER AND JUDGMENT *
Before SEYMOUR , BRORBY , and BRISCOE , Circuit Judges.
After examining the petitioner’s brief and the district court’s file, this panel
has determined unanimously that oral argument would not materially assist 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.
Petitioner seeks a certificate of appealability (COA) in order to appeal the
denial of his petition for writ of habeas corpus brought pursuant to 28 U.S.C.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
§ 2254. He also requests leave to proceed without prepayment of costs or fees.
Because he has not “made a substantial showing of the denial of a constitutional
right,” 28 U.S.C. § 2253(c)(2), we deny the application for a COA and dismiss
the appeal.
Procedural History
Petitioner was originally convicted by a jury of two counts of murder,
receiving sentences of death for one and life imprisonment without parole for the
other. On direct appeal, the Oklahoma Court of Criminal Appeals reversed both
convictions and remanded the matter for a new trial. Williams v. State , 915 P.2d
371, 376-77, 381 (Okla. Crim. App. 1996).
Following further proceedings, including a competency hearing, petitioner
was found to be competent. Petitioner then pleaded guilty to two counts of first
degree murder; in exchange for the agreement, he was sentenced to concurrent
terms of life imprisonment without parole. The prosecution further agreed not to
file new charges against him relating to a third homicide. As part of the plea
proceeding, petitioner admitted killing the two victims and stated that his intent,
at the time he shot them, was to kill them.
Shortly after the plea/sentencing proceeding, petitioner sent the trial judge
a letter seeking to withdraw his pleas for the reasons that he was not guilty and
had so pleaded only because he did not think he could obtain a fair trial before
-2-
that judge and because he was not taking proper medication. Following a hearing,
the trial court denied the application to withdraw the pleas.
On direct appeal from the guilty pleas, petitioner contended in his brief that
the pleas were invalid on the grounds that (1) he believed he could not obtain a
fair trial because the trial judge’s bailiff was best friends with the mother of one
of the victims and because of the trial judge’s expressed anger over the initial
reversal of the case; (2) he was not guilty of the charges and was not on proper
medication when the pleas were entered; and (3) he received ineffective
assistance of trial counsel because he was advised he could automatically
withdraw his guilty plea within ten days and had entered his guilty plea based on
this belief.
The Oklahoma Court of Criminal Appeals denied relief, finding the record
and petitioner’s testimony at the plea hearing failed to support the claim that the
pleas were involuntary or that the trial judge was in any way biased. The court
declined to consider his claim of ineffectiveness of trial counsel because
petitioner had not raised that issue in either his motion to withdraw the pleas or in
the Petition for Certiorari. R. Doc. 20, ex. B at 3-4.
Petitioner then filed a voluminous post-conviction proceeding in state
court, raising issues which the trial court categorized as (1) ineffectiveness of
trial counsel; (2) involuntariness of the guilty plea because petitioner was given
-3-
the wrong medication; (3) legitimate defenses and actual innocence; and
(4) improper influence of the case by the trial judge. The trial court found that
the first claim could have been raised on direct appeal and was therefore
procedurally barred. The court further found that the second and fourth claims
had in fact been raised on direct appeal and were barred by res judicata. The
court construed the third claim as an evidentiary issue which could not be raised
in a post-conviction proceeding because the guilty plea constituted an admission
of facts in the information. See Post-conviction Appeal, R. Vol. II at 298-302.
The Oklahoma Court of Criminal Appeals affirmed, noting that petitioner’s
principal assignment of error was the trial court’s failure to conduct an
evidentiary hearing. R. Doc. 20, ex. D at 2-3. The court further considered the
ineffectiveness claim (assuming for argument’s sake that under Okla. Stat. tit. 22,
§ 1086 there could exist sufficient reason for not raising the issue on direct
appeal), determining that petitioner was well aware of this claim before the filing
of the direct appeal, as evidenced on the record by petitioner’s motion to
disqualify his trial counsel filed September 10, 1997. R. Doc. 20, ex. D at 3-4.
That motion, see Post-conviction Appeal, R. Vol. I at 189, was filed shortly after
the hearing on the application to withdraw petitioner’s guilty pleas and nearly two
months prior to the filing of the direct appeal. The Court of Criminal Appeals
further suggested that petitioner had in fact urged in the direct appeal the claim
-4-
that the pleas were the result of ineffective assistance of counsel, thus making the
claims either waived or res judicata. See R. Doc. 20, ex. D at 4. 1
Petitioner then filed his petition for writ of habeas corpus in the district
court, again raising numerous issues, some of which had not been presented to the
state courts. In an exhaustive Supplemental Report and Recommendation, the
magistrate judge recommended denying the petition. See R. Doc. 27. The district
court adopted the report and denied the petition. R. Doc. 36. We have not here
detailed all of the claims presented to the district court because we are concerned
with only those issues preserved for appellate review in petitioner’s brief.
On appeal to this court, petitioner raises the following issues:
1. He was incompetent to enter his guilty plea because the mental
competency test he was given was inadequate and because the
medication he was taking was the wrong kind. Appellant’s
Br., First Issue.
2. The plea was unknowing and involuntary because (a) the trial
judge failed to inform him of certain constitutional rights
petitioner would be waiving, (b) he was coerced into pleading
1
We do note, however, that the court on direct appeal had declined to
consider the ineffectiveness claims because they had not been raised in either the
motion to withdraw the guilty pleas or in the certiorari petition, see R. Doc. 20,
ex. B at 3-4, but rather in the opening brief and in petitioner’s pro se brief.
-5-
guilty out of fear of the death penalty if he were tried, (c) the
plea was void for lack of factual bases, and (d) it was error
to accept the guilty plea because he denied culpability.
Id. at Second Issue.
3. He was denied the effective assistance of counsel because he
was misled into believing he could enter a temporary plea of
guilty and later withdraw it and his attorney was not involved
in the hearing to withdraw the plea. Id. at Third Issue.
4. The guilty plea is void because the trial judge “participated in
the plea negotiation” and was prejudiced against defendant.
Id. at Fourth Issue.
To establish entitlement to a COA where the district court has rejected
petitioner’s claims on the merits, he must “demonstrate that reasonable jurists
would find the district court’s assessment of the constitutional claims debatable or
wrong.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). For claims the district
court determined to be procedurally barred, petitioner must show “that jurists of
reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Id. However,
a writ of habeas corpus shall not be granted with respect to claims adjudicated on
-6-
the merits in state court unless that decision “resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States [or]
resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(1) and (2); Smith v. Massey , 235 F.3d 1259, 1265 (10th Cir. 2000).
Competence to Enter Guilty Plea
Petitioner first contends he was not competent to enter a guilty plea. On
his attorney’s application, the trial court ordered petitioner to be examined for the
purpose of determining his competency. Certiorari Appeal, R. Vol. I at 131.
Based on a written report of Dr. Edith King, stipulated to by the parties, and
following a hearing at which defendant and his attorney were present, the trial
court determined that petitioner was competent to stand trial. Id. Vol. II at
321-22. Petitioner entered his plea just over a month later. Moreover, there is
nothing in the record of the plea proceeding that would have caused the trial court
to doubt his competence. See Drope v. Missouri , 420 U.S. 162, 178-82 (1975)
(discussing factors triggering need for further inquiry into defendant’s
competence). At the guilty plea hearing, the trial court carefully questioned
petitioner about his medications, specifically eliciting what petitioner took and
when, including the statement that petitioner did not think his thinking or
-7-
reasoning was affected. Contrary to petitioner’s argument, there is nothing in the
transcript to indicate this prescription reduced his understanding of the
significance of his situation “to the point that he could not appreciate the full
result of his actions.” Appellant’s Br. at First Issue.
Petitioner’s complaint that he was not on “proper” medication appears to
stem from a court order, entered two days before the plea hearing, that petitioner
be placed on a different medication than the one he had been taking.
Nonetheless, based on his response to the trial court regarding his medications, it
appears petitioner may not have commenced taking the new one prior to the
hearing. However, as noted, the transcript of that hearing reflects petitioner’s
overall understanding of the consequences of the guilty pleas. Accordingly,
petitioner has failed to “demonstrate that reasonable jurists would find the district
court’s assessment of [this claim] debatable or wrong.” Slack , 529 U.S. at 484.
Unknowing and Involuntary Plea
Next, petitioner contends that the trial court failed to inform him of the
constitutional rights he was waving, that his plea was motivated based on his fear
of the death penalty, that the plea lacked an adequate factual basis, and that it was
error to accept his plea because he did not admit his guilt. Appellant’s Br.
Second Issue.
-8-
As the district court correctly noted, both the plea proceeding and the
written Summary of Facts (enumerating each right petitioner was waiving and
indicating petitioner’s understanding thereof) clearly show that he was properly
advised of and understood his trial rights. This is not a situation where the
waiver of important federal rights is presumed based on a silent record. See
Boykin v. Alabama , 395 U.S. 238, 243 (1969). Moreover, the record needs to
show only that petitioner’s plea was voluntary and intelligent. “An enumeration
of the specific rights waived and elements charged . . . is not required.” United
States v. Davis , 929 F.2d 554, 557 (10th Cir. 1991).
He also claims he entered the pleas because he feared the possibility of the
death penalty if retried or that he might be prosecuted for a third homicide. This
argument is without merit. A guilty plea “is not invalid merely because entered to
avoid the possibility of a death penalty.” Brady v. United States , 397 U.S. 742,
755 (1970) (footnote omitted).
Petitioner’s claim that there was no factual basis for his guilty pleas is not
supported by the record. The trial court recited the events, including the date of
the killings, the victims, petitioner’s shooting of the victims, and the element of
malice aforethought. Plea and Sentencing Tr. at 11-12. In addition, the written
plea agreement, signed by petitioner under oath, specified as follows:
-9-
On Oct. 2, 1993 in Okla. County, OK, I shot Ron Harris and
Tim McCain in my home and killed them, and at the time I shot them
I intended to kill them.
Certiorari Appeal, R. Vol II at 326. This was sufficient to establish a factual
basis for the plea, and the Oklahoma Court of Criminal Appeals expressly so
found. Post-Conviction Appeal, R. Vol. II at 295-96. Finally, notwithstanding
his present assertion that he denied culpability for the crimes, the plea transcript
reflects that petitioner admitted that when he shot the two victims, he intended to
kill them. Plea and Sentencing Tr. at 11-12. Accordingly, the magistrate judge
correctly determined that the pleas were entered voluntarily.
Ineffective Assistance of Counsel
Under this claim, petitioner contends he was misled by his trial attorney,
who allegedly told him that he could automatically withdraw his guilty pleas, thus
making the pleas involuntary. He further claims he was denied his Sixth
Amendment right to counsel “when he was without counsel during the hearing to
withdraw the involuntary plea.” Appellant’s Br. Third Issue. 2
The ineffectiveness issue based on advice that the plea could be withdrawn
was not reviewed by the Oklahoma Court of Criminal Appeals on direct appeal
2
Petitioner subsequently concedes in his brief, however, trial counsel was
present at the motion to withdraw the plea. This claim is thus both contrary to the
record and without merit.
-10-
because of petitioner’s failure to raise the issue in either the motion to withdraw
the pleas or in the petition for writ of certiorari. Rule 4.3(c)(5) of the Oklahoma
Court of Criminal Appeals rules applicable to appeal by certiorari from a guilty
plea require the certiorari petition to contain “errors of law urged as having been
committed during the proceedings in the trial court which were raised in the
application to withdraw [the] plea .” (Emphasis added.) Although
acknowledging that the state court’s decision based on state procedural grounds
was both independent of federal law and adequate, the magistrate judge
nonetheless considered the merits of this claim. See R. doc. 27 at 23-25.
The record includes petitioner’s “verified statement in his written Summary
of Facts that he had gone over the form with his attorney, understood its contents,
agreed with the answers, and those answers were true and correct.” Id. at 23-24.
Petitioner also stated at the plea proceeding that he and his attorney had
completed and fully discussed the form and that petitioner agreed with the
answers he had given to the questions. Plea and Sentencing Tr. at 14-15. At the
hearing on the motion to withdraw the plea petitioner stated that he remembered
going over the issues in the Summary of Facts and in particular his denial that
anyone had forced, abused, mistreated or pressured him. Application to Withdraw
Plea Tr. at 5. There is simply nothing in the record to support petitioner’s claim
that he was advised he could automatically withdraw his guilty plea.
-11-
Accordingly, he has failed to “demonstrate that reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or wrong.”
Slack , 529 U.S. at 484.
Judicial Participation
Finally, petitioner alleges that the guilty pleas are void because of “judicial
participation” by the trial judge in the plea agreement. Appellant’s Br. at Fourth
Issue. He contends that there was an in-chambers, off-the-record conference
between his attorney, the prosecutor, and the trial judge, which petitioner
concludes was participation by the judge in the plea negotiation.
The magistrate judge considered this issue, even though it was not
exhausted in State court, and found there was no factual support whatever for this
assertion. The trial judge explained that the conversation he had held with
counsel off-the-record concerned the pre-sentence investigation report, which
both sides had agreed was not necessary in the case. See Plea and Sentencing Tr.
at 12-14. Petitioner’s speculation about improper discussions is wholly fanciful
and lacking any factual or legal basis.
For these and the reasons stated in the magistrate judge’s Supplemental
Report and Recommendation, as adopted by the district court, we hold that
petitioner has failed to make a substantial showing of the denial of a
constitutional right under 28 U.S.C. § 2253(c)(2).
-12-
Accordingly, we DENY petitioner’s application for a certificate of
appealability and DISMISS the appeal. The motion for leave to proceed without
prepayment of costs or fees is GRANTED. The mandate shall issue forthwith.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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152 Mich. App. 240 (1986)
393 N.W.2d 598
SAID
v.
AUTO CLUB INSURANCE ASSOCIATION
Docket No. 82915.
Michigan Court of Appeals.
Decided June 2, 1986.
Kurnz & McNulty, P.C. (by Kevin A. McNulty), for plaintiffs.
Dickinson, Brandt, Hanlon, Becker & Lanctot (by Richard Haskins), for defendant.
Before: M.J. KELLY, P.J., and D.F. WALSH and WAHLS, JJ.
M.J. KELLY, P.J.
Plaintiffs appeal as of right from the dismissal of their complaint to vacate an arbitration award under GCR 1963, 769.9(1), now MCR 3.602(J). We affirm.
Plaintiffs allege that on February 16, 1979, they suffered personal injuries when their motor vehicle swerved to avoid an unidentified truck and crashed into an overpass wall. The truck made no contact with the plaintiff's vehicle. Plailtifd Nagi Said was insured with defendant under a no-fault policy which included an uninsured motorist provision. Defendant denied benefits under this provision and plaintiffs submitted the claim to arbitration. An arbitration decision was rendered August 9, 1983, in favor of defendant.
Plaintiffs appealed to the circuit court claiming clear legal error on the part of the arbitrators in requiring plaintiffs to show serious impairment of a body function and in enforcing, contrary to public policy, the insurer's definition of "hit and *242 run." The circuit court disagreed with both contentions and entered an order of summary judgment on January 18, 1985, dismissing plaintiffs' application to vacate the arbitration award.
We find no error on the face of the arbitration award entered in this case, which states merely that plaintiffs' claims against defendant are "hereby deemed denied." See DAIIE v Gavin, 416 Mich. 407, 443; 331 NW2d 418 (1982). As is typically the case, the arbitrators did not state any reasons for their decision and it is thus "virtually impossible to discern the mental path leading to" the award. Henderson v DAIIE, 142 Mich. App. 203, 206; 369 NW2d 210 (1985).
Another panel of this Court has already rejected the public policy argument advanced by plaintiffs against enforcement of an insurance policy definition requiring physical contact in a hit and run situation. Auto Club Ins Ass'n v Methner, 127 Mich. App. 683; 339 NW2d 234 (1983), lv den 418 Mich. 940 (1984). We agree with the analysis in Methner and hold that the arbitrators properly acted within the scope of the contract in the instant case.
Plaintiffs also argue that the arbitrators required plaintiffs to establish serious impairment of body function, contrary to the terms of the insurance contract. However, the arbitrators' analysis of plaintiffs' injuries is unclear from the face of the award, the terms of the contract, or any documentation provided by the parties. As defendant notes, the arbitrators may have found that the plaintiffs were not injured as a result of this accident. Appellate review of this issue is not possible on this record and we thus do not find it relevant to discuss any conflict of authority between panels of this Court.
Affirmed.
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J-S04010-20
J-S04011-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHARLES BROWN :
:
Appellant : No. 2908 EDA 2018
Appeal from the Judgment of Sentence Entered May 16, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004920-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHARLES BROWN :
:
Appellant : No. 3377 EDA 2018
Appeal from the Order Dated November 16, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004920-2017
BEFORE: BENDER, P.J.E., STABILE, J., and MURRAY, J.
MEMORANDUM BY BENDER, P.J.E.: FILED APRIL 7, 2020
In these two appeals, which we hereby consolidate, Appellant, Charles
Brown, appeals from his judgment of sentence (at 2908 EDA 2018), as well
as the order denying his motion for bail pending the disposition of his direct
appeal (at 3377 EDA 2018). In his appeal from his judgment of sentence of
J-S04010-20
J-S04011-20
an aggregate term of 8 to 20 years’ incarceration, Appellant challenges the
trial court’s denial of his post-sentence motion to withdraw his guilty plea. In
his appeal from the order denying him bail, Appellant contends that the court
abused its discretion because he does not pose a threat to society or a flight
risk, and he is likely to prevail in his appeal from his judgment of sentence.
After careful review, we affirm at both docket numbers.
The trial court summarized the facts of Appellant’s underlying
convictions, as follows:
Twenty-three year old victim, “I.C.,” reported that she had
met and formed a brief relationship with Appellant, who had
falsely informed her that his name was Frank Lewis. On or about
May 5, 2016, a verbal argument ensued which quickly escalated
to an extreme form of physical violence. Appellant severely beat
the victim about the face and body with bags of sand and a metal
pole. Appellant held I.C. against her will and confined in
Appellant’s small apartment in Philadelphia for approximately five
days.
During this five day period, Appellant repeatedly sodomized
and raped the victim and forced her to call her concerned family
members to falsely state that she had sex with her brothers.
Those family members contacted law enforcement who rescued
this victim from inside Appellant’s apartment and immediately
transported her to the hospital for emergency medical treatment
for multiple observable injuries to her arms, legs and face.
Appellant had fled the apartment.
The victim’s significant injuries were photographed by
investigators and a sexual assault exam had been performed. The
Rape Kit that had been collected, was analyzed and was positive
for male DNA. The Arrest Warrant had been obtained on June 17,
2016. Investigators continually searched for the Appellant until
his arrest date of January 5, 2017. Bail was originally set at
$500,000.00 after initial arraignment.
Trial Court Opinion (TCO), 6/21/19, at 3.
-2-
J-S04010-20
J-S04011-20
On May 16, 2018, the court conducted a hearing to address certain
pretrial motions filed by the parties. During that proceeding, Appellant
indicated that he wished to accept a plea deal offered by the Commonwealth.
After “calm negotiations, private conferences, and extensive oral and written
colloquies, … and after multiple intermissions had been provided to permit
Appellant to speak to his attorney and reflect upon [the] purpose and [his]
plea intentions, [the trial c]ourt accepted Appellant’s tendered negotiated
guilty pleas to recited offenses and imposed the [o]rder and [j]udgment of
[s]entences accordingly.” Id. at 5.
On May 24, 2018, Appellant filed a post-sentence motion to withdraw
his guilty plea. After two separate hearings on the motion, the court denied
it on August 23, 2018. Appellant timely filed an appeal, which was docketed
at 2908 EDA 2018.1 He also timely complied with the trial court’s order to file
a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
While his direct appeal was pending, Appellant filed a pro se request for
bail pending the disposition of his direct appeal. On November 16, 2018, the
court conducted an evidentiary hearing on the motion, and denied it that same
day. Appellant filed a timely appeal from that order, which was docketed at
3377 EDA 2018.
____________________________________________
1 We note that Appellant’s notice of appeal incorrectly stated that he was
appealing from the court’s August 23, 2018 order denying his post-sentence
motion. “In a criminal action, [the] appeal properly lies from the judgment of
sentence made final by the denial of post-sentence motions.”
Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super. 2001)
(en banc). We have amended the caption accordingly.
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On June 21, 2019, the trial court authored an opinion addressing the
following two issues that Appellant raises in cases 2908 EDA 2018 and 3377
EDA 2018, respectively:
[I.] Did the lower court err in denying Appellant’s post-sentence
motion to withdraw his guilty plea, where due to a break down in
the attorney-client relationship with plea[]counsel, Appellant was
psychologically coerced into pleading guilty, and therefore[,] did
not voluntarily enter into the plea, resulting in manifest
injustice[?]
[II.] ... [W]hether the trial court erred in denying his motion to
set bail pending appeal as he believes he is likely to prevail on his
appeal on 2908 EDA 2018, poses no appreciable danger to the
community[,] and would be gainfully employed while on bail?
Appellant’s Brief in 2908 EDA 2018 (hereinafter “Appellant’s Brief I”) at 7;
Appellant’s Brief in 3377 EDA 2018 (hereinafter “Appellant’s Brief II”) at 7.
In Appellant’s first issue, he contends that his guilty plea was
involuntary because it “was entered into while emotions were raw, done in a
hasty manner and in the spur of the moment, and after having had what he
asserts was a heated argument between he [sic] and plea counsel.”
Appellant’s Brief I at 14. Appellant also contends that his attorney-client
relationship with his counsel had completely broken down prior to his plea and
he was essentially coerced into entering it.
Preliminarily,
[i]n Commonwealth v. Prendes, 97 A.3d 337, 352 (Pa. Super.
2014), impliedly overruled on other grounds by Commonwealth
v. Hvizda, 116 A.3d 1103, 1106 ([Pa.] 2015), we explained that
a defendant may withdraw his guilty plea after sentencing “only
where necessary to correct manifest injustice.” Prendes, 97 A.3d
at 352 (citation omitted). Thus, “post-sentence motions for
withdrawal are subject to higher scrutiny since the courts strive
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to discourage the entry of guilty pleas as sentence-testing
devices.” Commonwealth v. Flick, 802 A.2d 620, 623 (Pa.
Super. 2002).
“Manifest injustice occurs when the plea is not tendered
knowingly, intelligently, voluntarily, and understandingly.”
Commonwealth v. Kpou, 153 A.3d 1020, 1023 (Pa. Super.
2016) (citation omitted). In determining whether a plea is valid,
the court must examine the totality of circumstances surrounding
the plea. Id. “Pennsylvania law presumes a defendant who
entered a guilty plea was aware of what he was doing, and the
defendant bears the burden of proving otherwise.” Id.
Commonwealth v. Hart, 174 A.3d 660, 664–65 (Pa. Super. 2017).
Here, Appellant concedes that there was no defect in the court’s guilty-
plea colloquy, “which was very extensive and thorough….” Appellant’s Brief I
at 15. He contends, however, that “the circumstances made its voluntariness
dubious; to wit, the attorney-client exchange heard from the courtroom.” Id.
According to Appellant, he and counsel “had a very heated argument” just
prior to the plea proceeding. Id. at 14. While Appellant claims that “it was a
two way argument[,]” id., the trial court states that Appellant was “loudly
yelling and verbally mistreating his attorney in the private conferences held in
the cell room booth positioned next to the courtroom….” TCO at 4-5. As the
encounter between Appellant and his counsel occurred off the record, we
cannot evaluate or consider what took place. However, as the Commonwealth
points out, the record shows that after the exchange,
the court gave [Appellant] time to “take a breath” and further
consult with counsel before proceeding. (N.T., 5/16/18[, at]
44)[.] After a break, [Appellant] proceeded through the guilty
plea colloquy calmly, methodically, and without emotionally
interrupting (as he had early in the proceedings). Nothing
suggests that [Appellant’s] “raw emotions” were guiding his
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decision. Moreover, on appeal, he cites no authority that suggests
a plea becomes involuntary or unknowing simply because the
defendant is emotional at the time of the plea.
Commonwealth’s Brief in 2908 EDA 2018 at 7-8. The record supports the
Commonwealth’s argument. We also note that nothing in the record indicates
that Appellant was rushed into his decision to plead guilty. Therefore, he has
failed to demonstrate that a manifest injustice will result by not permitting
him to withdraw his plea.2
In Appellant’s second issue, he challenges the trial court’s denial of his
motion for bail pending the resolution of his direct appeal. Pennsylvania Rule
of Criminal Procedure 523 states:
(A) To determine whether to release a defendant, and what
conditions, if any, to impose, the bail authority shall consider all
available information as that information is relevant to the
defendant’s appearance or nonappearance at subsequent
proceedings, or compliance or noncompliance with the conditions
of the bail bond, including information about:
(1) the nature of the offense charged and any mitigating or
aggravating factors that may bear upon the likelihood of
conviction and possible penalty;
(2) the defendant’s employment status and history, and
financial condition;
(3) the nature of the defendant’s family relationships;
____________________________________________
2 We also note that, to the extent Appellant’s claims sound in plea counsel’s
ineffectiveness, such issues must be raised on collateral review pursuant to
the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. See
Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013) (reaffirming the
prior holding in Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), that,
absent certain circumstances, claims of ineffective assistance of counsel
should be deferred until collateral review under the PCRA).
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J-S04011-20
(4) the length and nature of the defendant’s residence in
the community, and any past residences;
(5) the defendant’s age, character, reputation, mental
condition, and whether addicted to alcohol or drugs;
(6) if the defendant has previously been released on bail,
whether he or she appeared as required and complied with
the conditions of the bail bond;
(7) whether the defendant has any record of flight to avoid
arrest or prosecution, or of escape or attempted escape;
(8) the defendant’s prior criminal record;
(9) any use of false identification; and
(10) any other factors relevant to whether the defendant
will appear as required and comply with the conditions of
the bail bond.
(B) The decision of a defendant not to admit culpability or not to
assist in an investigation shall not be a reason to impose additional
or more restrictive conditions of bail on the defendant.
Pa.Crim.P. 523.
Additionally, our Court has explained that, “[w]e will review the lower
court’s order denying a bail application for an abuse of discretion and will only
reverse where the trial court misapplies the law, or its judgment is manifestly
unreasonable, or the evidence of record show that [its] decision is a result of
partiality, prejudice, bias, or ill will.” Commonwealth v. Bishop, 829 A.2d
1170, 1172 (Pa. Super. 2003) (cleaned up).
Here, Appellant avers that the court should have granted his motion for
bail during the pendency of his direct appeal because that appeal “has much
merit….” Appellant’s Brief II at 15. For the reasons set forth supra, we
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disagree. Thus, Appellant’s first argument as to why the court erred by not
granting him bail is meritless.
Appellant additionally contends that he should have been awarded bail
because his “record is not of such a nature that would render him a complete
menace to society.” Id. He elaborates that he “pled guilty to an Indecent
Assault (M2) in 2011. He has no other prior convictions.” Id. Appellant also
argues that the court weighed too heavily the facts of his present case, as he
now “asserts his innocence and therefore believes that these horrible facts
should not be held against him.” Id.
Again, Appellant’s argument is wholly unconvincing. Regardless of
Appellant’s prior record and his current assertion of innocence, he pled guilty
to two very serious offenses in the present case. In denying him bail, the trial
court focused on Appellant’s “particularly violent behavior, as well as evidence
of [his] long term avoidance of apprehension.” TCO at 12-13. The court
concluded that Appellant’s “flight risk and [the] danger to the community …
justified denial of bail.” Id. at 13. Given the record before us, we discern no
abuse of discretion in the court’s decision.
Accordingly, we affirm both Appellant’s judgment of sentence 2908 EDA
2018, and the order denying his request for bail in 3377 EDA 2018.
Judgment of sentence affirmed. Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/7/2020
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS August 23, 2005
TENTH CIRCUIT PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 04-2336
(D.C. No. CR-03-1662 JC)
ARTURO FIGUEROA-BANUELLOS, (New Mexico)
also known as Gonzaga Gonzalez-
Andrade,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.
Arturo Figueroa-Banuellos, a federal prisoner proceeding pro se, pled
guilty to one count of illegal reentry after deportation subsequent to a conviction
for an aggravated felony, in violation of 8 U.S.C. §§ 1326(a) and (b)(2), and one
*
After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
count of being an illegal alien in possession of a firearm in violation of 18 U.S.C.
§§ 922(g)(5)(A) and 924(a)(2). The district court sentenced him to eighty-four
months in prison. Mr. Figueroa-Banuellos filed a direct appeal asserting
ineffective assistance of counsel, which we dismissed on the basis that the issue
must be raised in a collateral challenge. United States v. Figueroa-Banuellos, No.
04-2018 (10th Cir. Oct. 19, 2004). Mr. Figueroa-Banuellos then filed pro se a
motion for modification of his sentence pursuant to 18 U.S.C. § 3582(c)(2). He
appeals the district court’s denial of that motion. We affirm.
Mr. Figueroa-Banuellos claims that Amendment 632 of the United States
Sentencing Guidelines, which amended guidelines § 2L1.2, lowered the
sentencing range applicable to his conviction, and that his sentence should be
reduced accordingly. Specifically, he challenges the application to him of
U.S.S.G. § 2L1.2(b)(1)(A), which provides for a sixteen-level increase if the
defendant had previously been deported or unlawfully remained in the United
States following a conviction for a drug trafficking felony for which the sentence
imposed exceeded thirteen months, or for a firearm offense. Mr. Figueroa-
Banuellos argues that under Amendment 632 he qualified for a lesser four-level
increase and thus his sentence should be modified to reflect the retroactive
application of the amendment. The district court denied Mr. Figueroa-Banuellos’
§ 3582(c)(2) motion, explaining that Amendment 632 was adopted on November
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1, 2001 and Mr. Figueroa-Banuellos was sentenced on January 21, 2004, thus his
motion does not implicate the retroactivity provisions of § 3582(c)(2).
“We review de novo the district court’s interpretation of a statute or the
sentencing guidelines.” United States v. Smartt, 129 F.3d 539, 540 (10th Cir.
1997) (quoting United States v. Acosta-Olivas, 71 F.3d 375, 377 (10th Cir.
1995)). Because Mr. Figueroa-Banuellos’ motion for a sentence modification is
not a direct appeal or a collateral attack under 28 U.S.C. § 2255, “the viability of
his motion depends entirely on 18 U.S.C. § 3582(c).” Id. (quoting United States
v. Trujeque, 100 F.3d 869, 870 (10th Cir. 1996)). According to § 3582(c), a court
may not modify a term of imprisonment once it has been imposed except 1) upon
a motion of the Director of the Bureau of Prisons, 2) if such modification is
expressly permitted by statute or Rule 35 of the Federal Rules of Criminal
Procedure, or 3) if a sentencing range has subsequently been lowered by the
Sentencing Commission. 18 U.S.C. § 3582(c).
Mr. Figueroa-Banuellos seeks a modification under the third exception,
arguing that his sentencing range was subsequently lowered by Amendment 632.
We agree with the district court’s conclusion that even if Amendment 632 applies
to Mr. Figueroa-Banuellos, he does not qualify for a sentence modification
because the sentencing range used in his conviction was not subsequently lowered
by the Sentencing Commission. Amendment 632 was in effect at the time of Mr.
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Figueroa-Banuellos’ sentencing and he is therefore not qualified for a sentence
modification under § 3582(c)(2).
In any event, the presentence report (PSR) notes that in addition to a prior
conviction for which Mr. Figueroa-Banuellos’ sentence did not exceed thirteen
months, he had also been convicted of drug trafficking offenses for which he
received a sentence of twelve years imprisonment, with ten years suspended.
Under the 2002 guideline manual, which was used in the PSR, he clearly qualified
for a sixteen-level increase in his sentence pursuant to § 2L1.2(b)(1)(A).
We have carefully reviewed the record of these proceedings and the order
of the district court. For the foregoing reasons we AFFIRM the district court’s
decision denying a sentence reduction under § 3582.
SUBMITTED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 6 2001
TENTH CIRCUIT
__________________________ PATRICK FISHER
Clerk
ROGER DUANE PFEIL,
Petitioner-Appellant,
v. No. 01-8003
(D. Wyo.)
VANCE EVERETT, Warden, (D.Ct. No. 00-CV-93-B)
Wyoming State Penitentiary;
WYOMING ATTORNEY GENERAL,
Respondent-Appellee.
____________________________
ORDER AND JUDGMENT *
Before SEYMOUR, McKAY, and BRORBY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
Appellant Roger Duane Pfeil, a state inmate appearing pro se, appeals the
district court’s decision denying his federal habeas corpus petition filed pursuant
to 28 U.S.C. § 2254 as untimely filed. We deny Mr. Pfeil a certificate of
appealability 1 and dismiss his appeal.
Following his guilty plea, the State of Wyoming convicted Mr. Pfeil of
second degree murder and sentenced him to twenty-five to forty-five years
imprisonment on July 28, 1997. Mr. Pfeil did not file a direct appeal. Mr Pfeil
also did not file any state post-conviction or other pleading until November 18,
1998 when he filed a motion to withdraw his guilty plea. The state district court
denied his motion and Mr. Pfeil appealed to the Wyoming Supreme Court which
denied certiorari; the United States Supreme Court also denied certiorari. On
August 2, 1999, Mr. Pfeil filed a state habeas corpus which he also unsuccessfully
litigated thorough the state courts until the Supreme Court ultimately denied
certiorari. Finally, on May 9, 2000, Mr. Pfeil filed his federal habeas corpus
petition under § 2254 alleging multiple errors in his conviction and sentencing.
1
The district court made no ruling on Mr. Pfeil’s request for a certificate of
appealability. Under our Emergency General Order of October 1, 1996, we deem the
district court’s failure to issue a certificate of appealability within thirty days after filing
the notice of appeal as a denial of his certificate. Mr. Pfeil renewed his request for a
certificate of appealability on appeal.
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The federal district court referred Mr. Pfeil’s petition to a magistrate judge
who issued a report and recommendation. The magistrate judge recommended
denying Mr. Pfeil’s petition as untimely filed. The magistrate judge determined
Mr. Pfeil’s conviction became final on August 27, 1997, because he had thirty
days after his July 28, 1997 sentence to file a direct appeal to the Wyoming
Supreme Court. The magistrate judge also determined that because Mr. Pfeil did
not file a direct appeal, the ninety-day period for filing an appeal to the United
States Supreme Court did not apply in determining the date his conviction became
final. As such, the magistrate judge determined the one-year limitation period for
filing a federal habeas petition ended August 27, 1998, and that none of the state
post-conviction pleadings tolled the one-year limitation period because Mr. Pfeil
did not file them until after this limitation period expired.
The magistrate judge also rejected Mr. Pfeil’s request for equitable tolling,
in which he alleged he experienced a prison lockdown at the beginning of
sentence, from August to December 1997, and could not conduct legal research
for the purpose of filing for state post-conviction relief. The magistrate judge
determined Mr. Pfeil had at least eight months after the lockdown to diligently
pursue his claims and failed to allege with sufficient specificity how he was
denied “a lack of access and the steps he took to diligently pursue his federal
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claims.”
Mr. Pfeil timely filed objections to the magistrate judge’s report and
recommendation, claiming in part that equitable tolling should apply because he
was in a total lockdown in the West Unit section of the prison until late December
1997, during which time: 1) he was allowed only an hour out of his cell per day,
and 2) he could not speak to other inmates to learn “what [remedies were]
available” or how to order legal books. After the cells were unlocked, he claimed
he was repeatedly denied “kite” or “kiting” requests or orders for legal books
from the law library for the period from November 11, 1997 until his transfer to
the East Unit section of the prison on March 25, 1998.
In his objections, Mr. Pfeil pointed out that from March 25 until October
1998, he “was in the East Unit which was open and had normal access to the law
library for research except under certain instances.” However, despite being in
the open prison section, Mr. Pfeil contended he was denied library access because
he was required to work at the prison auto shop or else face return to the
lockdown section, disciplinary actions, or decreased parole possibilities. Mr.
Pfeil further pointed out he could not access the law library at night due to its
6:00 p.m. closure, wrote multiple “kites” requesting it be opened on weekends
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and nights, and tried to leave work early or get other inmates to obtain books for
him. He explained he eventually obtained a book on post conviction remedies
called “Post-Conviction Remedies; a Self Help Manual by Manville and Brezna,”
but had difficulty understanding what remedies were available. Finally, he
alleged that in October 1998 he finally gained access to the prison law library
because his boss was on a hunting trip, and mailed his motion to withdraw his
guilty plea on November 13, 1998.
After reviewing Mr. Pfeil’s objections thereto, the district court issued an
order adopting the magistrate judge’s report and recommendation and denying Mr.
Pfeil’s petition. In so doing, the district court found Mr. Pfeil’s petition untimely
and rejected Mr. Pfeil’s argument that equitable tolling should apply. The district
court reasoned that the prison lockdown Mr. Pfeil experienced only lasted until
December 1997 and his inability to obtain certain requested legal materials lasted
only from November to December 1997 when the lockdown was lifted. The
district court reasoned that Mr. Pfeil was not prevented from diligently pursuing
his claims within the one-year limitation period after December of 1997, but did
not explicitly address Mr. Pfeil’s contentions concerning his access to legal
materials from March to October 1998, while in the prison’s open section.
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On appeal, Mr. Pfeil raises multiple issues claiming the district court erred
in not tolling the one-year limitation period. Specifically, Mr. Pfeil complains the
district court erred in: 1) not tolling the limitation period during the lockdown
period and later due to his work schedule; 2) not applying either mandatory or
discretionary tolling because of the court’s misinterpretation of the standards set
forth in § 2244(d)(1)(B); 3) not tolling for “time periods between pending timely
filed state post conviction or other collateral proceedings” or the periods his post-
conviction proceedings were appealed to the United States Supreme Court; 4)
violating the Suspension Clause of the Constitution by not applying either
mandatory or discretionary tolling; 5) not considering the actual innocence or
miscarriage of justice exception to the one-year statute of limitations; and 6) not
finding a jurisdictional defect exception to the one-year limitation period. Among
other things, Mr. Pfeil also alleges the district court erred in dismissing his
petition with prejudice, and not granting his motion to disqualify the state and
strike its response to his petition due to its “improper conduct and constitutional
conflict.” Mr. Pfeil also sets forth numerous grounds in support of his petition on
the merits.
“In reviewing the denial of a habeas corpus petition, we review the district
court’s factual findings under a clearly erroneous standard.” Rogers v. Gibson,
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173 F.3d 1278, 1282 (10th Cir. 1999), cert. denied, 528 U.S. 1120 (2000). We
review de novo both the district court’s interpretation of § 2244(d), see United
States v. Fillman, 162 F.3d 1055, 1056 (10th Cir. 1998), and its legal basis for
dismissal of Mr. Pfeil’s habeas corpus petition. Rogers, 173 F.3d at 1282.
Applying this standard of review, and after a careful review of the record,
we conclude, for substantially the same reasons as the district court, that Mr. Pfeil
did not file a timely petition. First, as the district court determined, Mr. Pfeil’s
direct appeal and his judgment and sentence became final August 27, 1997.
Because Mr. Pfeil did not file a direct appeal to the Wyoming Supreme Court, the
ninety-day time period for appeals to the United States Supreme Court did not
extend the date that his judgment and sentence became final. See United States
Supreme Court Rule 13 (stating ninety-day period applies only to decisions from
the state court of last resort); cf. Rhine v. Boone, 182 F.3d 1153, 1155 (10th Cir.
1999) (holding ninety-day period applies following a direct appeal of the
conviction), cert. denied, 528 U.S. 1084 (2000). Thus, the one-year statute of
limitations began August 27, 1997 and expired August 26, 1998. See 28 U.S.C.
§ 2244(d)(1); Hoggro v. Boone, 150 F.3d 1223, 1225 (10th Cir. 1998). In
addition, even if Mr. Pfeil’s motion to withdraw his guilty plea is considered a
post-conviction or collateral attack under § 2244(d)(2), neither it nor his later
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state habeas action were filed during the pendency of the one-year limitation
period. Therefore, no mandatory tolling occurred. Barnett v. LeMaster, 167 F.3d
1321, 1322-23 (10th Cir. 1999). Furthermore, the period in which Mr. Pfeil filed
his petition for certiorari in his post-conviction actions with the Supreme Court
does not apply for tolling purposes. See Rhine, 182 F.3d at 1155-56.
As to Mr. Pfeil’s contention equitable tolling should apply, we recognize
the one-year statute of limitations may be equitably tolled, but only “when an
inmate diligently pursues his claims and demonstrates that the failure to timely
file was caused by extraordinary circumstances beyond his control.” Marsh v.
Soares, 223 F.3d 1217, 1220 (10th Cir. 2000), cert. denied, 121 S. Ct. 1195
(2001). In this case, the issue is whether Mr. Pfeil’s alleged limited access to the
prison law library denied him “meaningful access to the courts” which posed an
extraordinary circumstance sufficient to equitably toll the limitation period. We
recognize the right to access the courts is protected from state prison officials
actively interfering with an inmate’s attempt to prepare or file legal documents.
See Lewis v. Casey, 518 U.S. 343, 350 (1996). The Supreme Court has
recognized that prison law libraries and legal assistance programs are one means
of ensuring the right of access, but that an inmate must demonstrate the alleged
shortcomings in the library or legal assistance program hindered his effort to
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pursue a legal claim. Id. at 351. As such, inmates must show they diligently
pursued their claims. See Miller v. Marr, 141 F.3d 976, 978 (10th Cir.), cert.
denied, 525 U.S. 891 (1998). Inmates are not guaranteed the “wherewithal to
transform themselves into litigating engines” but only the tools “inmates need in
order to attack their sentences, directly or collaterally.” Lewis, 518 at 355.
“[T]he Constitution does not require that prisoners (literate or illiterate) be able to
conduct generalized research, but only that they be able to present their
grievances to the courts – a more limited capability that can be produced by a
much more limited degree of legal assistance.” Id. at 360.
With this in mind, we begin with the lockdown Mr. Pfeil experienced. We
agree with the district court that Mr. Pfeil experienced a prison lockdown for only
a short period of the one-year limitation period. In addition, we agree with the
district court that Mr. Pfeil’s allegation he requested and was denied certain legal
materials for a few months during his stay in the West Unit is insufficient to toll
the limitation period or show a limitation in diligently pursuing his claims, given:
1) he was later released into the prison’s open section for several months during
the limitation period and 2) he admitted this section “had normal access to the law
library for research except under certain instances.” Mr. Pfeil’s complaint that he
did not understand what remedies were available to him during this time or that
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he lacked adequate legal training are also insufficient to warrant the special
consideration required for equitable tolling. See Marsh, 223 F.3d at 1220.
In addition, the Supreme Court has recognized lockdowns routinely cause
delays in receiving legal materials, but also ruled that “so long as they are the
product of prison regulations reasonably related to legitimate penological
interests, such delays are not of constitutional significance, even where they result
in actual injury.” Lewis, 518 U.S. at 362; see also Akins v. United States, 204
F.3d 1086, 1090 (11th Cir.) (analyzing lockdown as an impediment under
§ 2244(d)(1)(B), rather than under an equitable tolling theory, and concluding a
lockdown may be an impediment affecting the date a conviction becomes final,
but that petitioner has the burden of showing the lockdown was not “reasonably
related to legitimate penological interests.”), cert. denied, 121 S. Ct. 410 (2000);
McDonald v. Steward, 132 F.3d 225, 230-31 (5th Cir. 1998) (holding in 42 U.S.C.
§ 1983 suit that “[l]imitations may be placed on library access so long as the
regulations are ‘reasonably related to legitimate penological interests.’”). In this
case, even if we consider Mr. Pfeil’s lockdown argument as one claiming an
impediment under § 2244(d)(1)(B) extending the date his conviction became
final, Mr. Pfeil has not presented any evidence the lockdown was not related to
legitimate penological interests. See Akins, 204 F.3d at 1090.
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We next address the period Mr. Pfeil spent in the prison’s open section or
East Unit during the remaining months of the limitation period. Mr. Pfeil raises a
serious charge that he was denied access to a law library or legal materials during
the months he was in the prison’s open section, thereby foreclosing any
opportunity to research his claims. While the open section provided general
library access, Mr. Pfeil nevertheless contends he was denied access because he
was required to work during the only time the library was open, and that after
6:00 p.m., the library was closed. However, Mr. Pfeil does not explain how early
the library opened, precisely what the library hours were in comparison to his
work hours, or how many hours and days he was required to work. He also does
not indicate whether he had free time or lunch privileges during which he could
access the library, whether he asked to transfer to a job with hours more
conducive to library access, or whether he continued to request, but was denied,
legal books through the process he calls “kiting.”
Moreover, Mr. Pfeil admitted he received a book on seeking post-
conviction remedies while he was in the open section of the prison. This shows
access to at least some legal resource intended to aid him in presenting his
grievances to the courts. Lewis, 518 at 360. The fact Mr. Pfeil did not fully
comprehend the remedies available to him after receiving this book is not
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sufficient to show the extraordinary circumstances necessary for equitable tolling.
Rather, “it is well established that ignorance of the law, even for an incarcerated
pro se petitioner, generally does not excuse prompt filing.’” Marsh, 223 F.3d at
1120 (quotation marks and citation omitted).
Finally, while prisoners have the burden of demonstrating the library or
legal assistance program at their prison hindered their efforts to pursue a legal
claim, Lewis, 518 U.S. at 351, Mr. Pfeil has furnished only his own self-serving
declarations supporting his allegations. Under these circumstances, we cannot say
Mr. Pfeil has shown with sufficient particularity the extraordinary circumstances
required to toll the limitation period. While the district court did not explicitly
address Mr. Pfeil’s library access argument relating to the period between March
1998 to October 1998, we conclude that under the circumstances the district court
did not err in holding that equitable tolling was not warranted.
As to Mr. Pfeil’s contention that the district court erred because it did not
consider the actual innocence or miscarriage of justice exception to the one-year
statute of limitations, we find it harmless under the circumstances. The record
shows Mr. Pfeil summarily made two self-serving assertions of innocence, which
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we conclude are insufficient to make a colorable showing of innocence. 2
As to Mr. Pfeil’s additional contentions, we conclude the district court did
not misinterpret the standards set forth in § 2244(d)(1)(B), violate the Suspension
Clause of the Constitution by not applying either mandatory or discretionary
tolling, nor err in not finding a “jurisdictional defect exception” to the one-year
limitation period. These claims simply lack merit under the circumstances of this
case, and need no further discussion or analysis. We also hold that the district
court did not err in dismissing Mr. Pfeil’s petition with prejudice because, as we
have recognized, it was untimely filed. We also review for abuse of discretion
Mr. Pfeil’s motion to disqualify the state and strike its response to his petition due
to its “improper conduct and constitutional conflict.” See McEwen v. City of
Norman, 926 F.2d 1539, 1550 (10th Cir. 1991). After a review of the record, we
conclude the district court did not abuse its discretion in dismissing Mr. Pfeil’s
motion to disqualify the state and strike its response to his habeas petition.
Finally, given our conclusion Mr. Pfeil untimely filed his § 2254 petition, we
need not address the merits of his petition.
2
In addition, some of Mr. Pfeil’s citations to the record in support of his
innocence assertion relate instead to his argument his guilty plea was not knowing,
intelligent, informed or voluntary.
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In order for this court to grant a certificate of appealability, Mr. Pfeil must
make a substantial showing of a denial of a constitutional right under 28 U.S.C.
§ 2253(c)(2). When the district court denies a habeas petition on procedrual
grounds, as it did here, without reaching the underlying constitutional claims, a
certificate of appealability “should issue when the prisoner shows, at least, that
jurists of reason would find it debatable whether the petition states a valid claim
of the denial of a constitutional right and that jurists of reason would find it
debatable whether the district court was correct in it procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). Under the circumstances presented, Mr.
Pfeil has not shown the district court’s procedural ruling is debatably in error.
Accordingly, we DISMISS Mr. Pfeil’s appeal. We further deny Mr. Pfeil’s
request to proceed in forma pauperis, and for failure to show cause and DISMISS
his “Motion to Strike State’s Opposition, Stay Proceedings for Determination of
Question and Request for Consideration of Sanctions.”
Entered by the Court:
WADE BRORBY
United States Circuit Judge
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01-03-2023
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08-14-2010
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https://www.courtlistener.com/api/rest/v3/opinions/3844879/
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Argued November 30, 1945.
The Pennsylvania Threshermen and Farmers' Mutual Casualty Insurance Company, the appellee, issued its policy of insurance to the Liberty Laundry Company, agreeing to indemnify the latter, within certain specified limits, against liability for damage to others that might result from the operation of an automobile owned by the insured. About eleven o'clock on the night of December 21, 1941, the policy then being in force, the minor plaintiff was struck and injured by the insured automobile which was being driven at the time by one Joseph Jones, an employee of the Laundry Company.
The minor, acting by his mother as his guardian, and the mother, in her own right, sued the Laundry Company for damages for the injuries so suffered by the minor. The Laundry Company turned the writ over to the Insurance Company as it was required to do by the terms of the policy; and the latter caused its own attorney to enter an appearance for the defendant. The attorney also duly prepared and filed an affidavit of defense which was sworn to by the president of the Laundry Company. The affidavit of defense contained the following: "It is denied that the automobile of the defendant was being operated at the time of the accident by any servant, agent, workman or employee of said defendant; and all allegations of negligence in this paragraph [paragraph 4 of the plaintiffs' statement], with reference to the said *Page 403
defendant, are therefore denied. On the contrary, it is averredthat said car was loaned to Joseph Jones, and that said JosephJones was using said automobile exclusively at that time on hisown business or for his own pleasure, and not upon any business of the defendant." (Emphasis supplied).
Upon the filing of the affidavit of defense, the plaintiffs proceeded no further with their suit against the Laundry Company but, thereupon, instituted a suit for damages for the same injury against the Administrator of the estate of Jones, the driver of the automobile, who had died in the meantime. The Insurance Company was duly notified of the institution of this suit and was called upon to defend but refused to do so, denying liability. The policy contained the following provision:
"EXTENDED COVERAGE. The insurance as provided by this policy, is hereby made available in the same manner and under the same conditions as it is available to the named insured, to any other person, firm or corporation using any of the automobiles described in the statements or legally responsible for the operation thereof, provided the actual use is with thepermission of the named insured." (Emphasis supplied).
In the suit against the Administrator of Jones' estate the plaintiffs obtained judgments for want of an appearance. The amounts of the respective judgments were duly assessed with notice to the Insurance Company in sums of $15,000 in favor of the minor plaintiff and $5,000 in favor of his mother. The plaintiffs then issued writs of attachment on the judgments, summoning the Insurance Company therein as garnishee. After interrogatories by the plaintiffs, answers thereto by the garnishee and a plea of "nulla bona" by the latter, the matter was proceeded with to trial. The issue involved was whether Jones was, at the time of the injury to the minor plaintiff, driving the automobile with the permission of the insured. To establish that he was, the plaintiffs offered and the trial court admitted in evidence the allegation in the *Page 404
Laundry Company's affidavit of defense as above quoted. At the time of the garnishment trial, the president of the Laundry Company, who had sworn to its affidavit of defense, also was dead.
The jury returned a verdict for the minor plaintiff against the garnishee to the extent of the latter's liability under the indemnity contract plus interest and costs. As the judgment for the minor plaintiff exceeded in amount the limit of the Insurance Company's liability ($10,000) for injuries to one person, plaintiffs' counsel elected at trial to proceed on that judgment. At the appropriate direction of the trial court, a verdict for the garnishee was accordingly returned with respect to the judgment for the mother.
The court below entered judgment n. o. v. for the garnishee on the ground that the learned trial judge had erred in admitting the allegations of the Laundry Company's affidavit of defense as evidence of the insured's permission to Jones to use the automobile for his own purposes and that, even with such evidence included, it was insufficient to spell out the permission requisite to render the "Extended Coverage" provision operative.
The entry of the judgment n. o. v. was error in any view. If the evidence of the owner's permission to Jones to use the automobile, as contained in the Laundry Company's affidavit of defense, was erroneously admitted, the only way that it could properly be excluded after trial was through the medium of a new trial where, upon the resubmission of the allegation, it could be rejected: see Kotlikoff v. Master, 345 Pa. 258, 265,27 A.2d 35. The court could not, on the garnishee's motion for judgment n. o. v., eliminate the evidence on the ground that it had been improperly received at trial and then dispose of the case on the basis of the diminished record: Murphy v. WolverineExpress, Inc., 155 Pa. Super. 125, 130, 38 A.2d 511. Nonconstat that, had the assailed evidence been denied admission in the first instance, the plaintiffs would not have been able to supply other competent evidence. *Page 405
Nor is the entry of judgment for the garnishee, n. o. v., helped by the ruling of the court en banc that, even with the contested evidence included, it was incapable of proving the Laundry Company's permission to Jones to use the automobile. We do not think that the word "loaned", especially in respect of a chattel, is so strictly limited in its legal significance that the court could say, as a matter of law, that its reasonably intended sense did not include a right in the loanee to make use of "the loan" for his own purposes. Black's Law Dictionary, Second Ed. (p. 733), defines the "loan" of a chattel as "A bailment without reward; consisting of the delivery of an article by the owner to another person, to be used by the latter gratuitously, and returned either in specie
or in kind". It was for the jury to say what meaning the word "loaned" was intended to import in the Laundry Company's affidavit with respect to Jones' possession of the automobile and his right to use it at the time of the injury. The jury having determined that issue of fact in the plaintiffs' favor, it was not permissible for the court thereafter to treat with the garnishee's motion for judgment n. o. v. in disregard of the jury's cognate finding: see Zurcher v. Pittsburgh RailwaysCompany, 353 Pa. 212, 213, 44 A.2d 581; Delair v. McAdoo,324 Pa. 392, 396, 188 A. 181.
That leaves then but the question whether the statement in the Laundry Company's affidavit of defense was competent evidence against its insurer in the garnishment proceeding. We think that it was. However, in so holding, we do not predicate our ruling upon the privity of contract between the Laundry Company and the Insurance Company: cf. Floyd v. Kulp LumberCompany, 222 Pa. 257, 267-268, 71 A. 13. It can hardly be thought that, because of the privity of contract between an insurer and its insured without more, a statement pleaded by the insured in a proceeding to which the insurer is not a party, involving the character or extent of the insured risk, is competent evidence against the insurer in another *Page 406
proceeding involving the insurer's liability for the risk. Nor do we hold that it is.
There is, however, in this case more than mere privity of contract. Here the insurer, although not a nominal party, was the substantial defendant in the plaintiffs' suit against the Laundry Company. The insurer voluntarily assumed to stand in the shoes of the insured owner of the automobile. Thus, the Insurance Company caused its own attorney to prepare and file the affidavit of defense and to enter his appearance for the Laundry Company in order to take charge of the litigation in the interest of the Insurance Company. This was done in reliance upon the Insurance Company's right so to act under the terms of its contract with the insured. The garnishee virtually concedes as much. In its brief on this appeal, it states: "Suit was started against the Liberty Laundry Company. An Affidavit of Defense was filed by its insurance carrier, through counsel for it, the appellee [garnishee],. . . ." (Emphasis supplied). With authorized counsel so acting formally at the instance and in the interest of the Insurance Company, the latter was bound by the allegations or concessions which its attorney made in its behalf: cf. Truby v. Seybert, 12 Pa. 101, 105, cited with approval in Floyd v. Kulp Lumber Company, supra, at p. 268.
Incidentally, the affidavit of defense was effective for the intended service of the Insurance Company's then current interest. Upon the filing of the affidavit of defense alleging that at the time of the injury to the minor plaintiff the automobile was being driven by Jones for his own pleasure and on his own business under loan from the owner and not on the business of the Laundry Company, the plaintiffs abandoned their suit against the Laundry Company. That result was directly induced by the affidavit of defense filed, as the garnishee admits, for itself, "the insurance carrier", as the virtual pleader. The allegation of fact in the affidavit of defense was therefore competent and substantive evidence against *Page 407
the Insurance Company as an admission against interest, albeit it was not conclusive: see Commonwealth v. Monongahela BridgeCompany, 216 Pa. 108, 115, 64 A. 909; Houseman v. InternationalNavigation Company, 214 Pa. 552, 567, 64 A. 379; Truby v.Seybert, supra, at p. 103; Wigmore on Evidence, Third Ed., Vol. IV, § 1066; Henry, Pennsylvania Trial Evidence § 65.
As the party in whose favor a jury's verdict is re, turned is entitled, on a motion for judgment n. o. v., to the benefit of all facts and inferences most favorable to him that may be drawn from "the evidence upon both sides" (McKown v. StateMutual Life Assurance Company of Worcester, 127 Pa. Super. 117,125, 191 A. 621), it becomes pertinent in the instant case to consider the testimony offered by the garnishee in support of its affirmative defense which it failed to maintain.
The garnishee called as a witness an officer of the Laundry Company who testified in substance that Jones had the Company's permission to use the automobile in going to and from his home and the Laundry Company with the duty upon him to "garage" the automobile at his home overnight. Obviously this was for the purpose of limiting the extent of the permission to Jones, but the garnishee failed to prove that Jones had exceeded the limits of the permission as the garnishee had proven it to be. Thus, the garnishee proved no more than that, shortly before the injury to the minor plaintiff which occurred at 11 P. M., Jones had stopped at the home of a fellow worker in an effort to borrow money. Failing in that, he went on and the accident happened soon thereafter. There is not one word of testimony as to the location of Jones' place of residence or that of his co-worker. Nor is there any competent proof as to what time Jones had left the Laundry Company's place of business. The garnishee sought over objection to establish the latter fact by proof of a custom. But, the proffered testimony fell far short of its intended purpose. It was wholly incapable of warranting any finding as to what time Jones *Page 408
had left the Laundry Company on the night of the accident. There was nothing, therefore, in the case to justify even an inference that Jones had exceeded the limits of his permission, as the garnishee had restricted it, or, if he had done so, that the departure was substantial: see Laroche v. Farm BureauMutual Automobile Insurance Co., 335 Pa. 478, 482, 7 A.2d 361, which was followed in Freshkorn v. Marietta, 345 Pa. 416, 419,29 A.2d 15. As against this, the plaintiffs were entitled to the benefit of the presumption that Jones, in driving the automobile at the time and place of the accident, was acting rightfully rather than wrongfully: cf. Rau v. Wilkes-Barre andEastern R. R. Co., 311 Pa. 510, 513, 167 A. 230; Winlack v.Geist and Thomas, 107 Pa. 297, 300. The garnishee's own evidence served to confirm that the case was one for the jury.
The judgment is reversed with directions that judgment be entered on the verdict for the minor plaintiff.
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01-03-2023
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07-06-2016
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https://www.courtlistener.com/api/rest/v3/opinions/3844881/
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Margaret Karmendi was found guilty of the murder of her three-and-a-half-year-old boy and sentenced to death. She had been indicted with Roy Lockard for the same offense but was separately tried. This was her second trial. Her first conviction was reversed in 325 Pa. 63, and a new trial granted. Her companion, Roy Lockard, found guilty of the same offense, with the same punishment, had also appealed. The judgment was sustained in Com. v. Lockard, 325 Pa. 56. Mrs. Karmendi appeals from her second conviction. We are now reviewing the facts for the third time.
The chief ground of complaint is that there was not sufficient evidence to warrant conviction. In reviewing the record of a conviction for murder under the Act of February 15, 1870, P. L. 15, as it is our duty so to do, *Page 324
we are to determine solely whether the degree or elements of murder in the various degrees are present. In this grave accusation we review only the Commonwealth's case. We do not approach the question as if we were jurors deliberating on the weight of the evidence or the credibility of the witnesses, nor as jurors would do under the facts as developed. Nor do we approach it with a fear that we might possibly find the elements of first degree murder to be in the record, and hesitate in our duties because it involves the death penalty. Nor do we consider it with a desire to avoid the unpleasant duty of finding the elements present. Our simple question, one that has been passed on by this court often before, is this: Are the elements of first degree murder present? In other words, was there sufficient evidence, direct or circumstantial, from which the jury might find beyond a reasonable doubt a homicide of the first degree, committed by the accused? In so doing, we do not consider evidence of the prisoner which, if believed, might show innocence: Com. v. Danz, 211 Pa. 507.
In convictions for murder, the sole, absolute and final responsibility for the verdict and its consequences rests with the jury. That responsibility comes from the performance of a public duty of the highest importance and is assumed when all the testimony, pro and con, is weighed and considered by them and a decision reached. Their conclusion cannot be reversed or set aside by this Court unless there has been a trial mistake, or the evidence is insufficient to sustain the verdict as a matter of law.
With this thought in mind we must review the evidence, first stating the State's position in the trial. The Commonwealth's theory of the case is that there was a plot to get rid of the child by Lockard and the accused. The child was in their way. There was time for premeditation, preparation, deliberation and action. To cover up their offense it was to be so arranged that death was *Page 325
to take place on a highway when an automobile was passing, and to be inflicted in such a way that the unknown motorist should be charged with striking and killing the boy. To sustain this theory, the Commonwealth rests its case for conviction on these grounds: (1) That the accused must have committed the crime as she was the only person logically in a position to commit it; (2) that her statements and admissions show that even if Lockard committed the killing she participated in the crime; (3) that when she was accused of the crime by Lockard, she so demeaned herself as to admit it. Ancillary to these three basic grounds, the Commonwealth submitted evidence of the unnatural conduct of the accused at the time of the killing and which persisted afterward even to the time of trial.
We will now state briefly the salient points of the evidence, which are not disputed. Margaret Karmendi, a married woman, her husband working in a silk mill, met Roy Lockard sometime before April 21, 1936, possibly eight months or so before the crime. There were many disagreements between the accused and her husband and they had been separated. No illicit relations between the accused and Lockard were shown, but it did appear that their friendship was unknown to the husband, and on the days when they met she returned to her home be. fore her husband came back from work. On at least one occasion the child had told his father that on his walk to the town with his mother she had had a conversation with a man. An acquaintance grew up between them, and about 5:15 on the afternoon of April 21st they met. The little boy was with them. They walked to the Lockard home on the outskirts of the City of Altoona to get his coat, after which they went down toward the center of town, reaching 11th Avenue and Bridge Streets about 7:30; from there they proceeded to the Pennsylvania Railroad Station, where they remained until about 9:00 o'clock in the evening. Leaving it, they went up 10th Avenue, crossed Bridge Street to 17th Street, thence to *Page 326
Jaggard Street. Lockard was carrying the boy. A short distance down Jaggard Street they waited for about five minutes. An automobile came down Jaggard Street from First Avenue, and, as the automobile passed, the top of the boy's skull was crushed in by a heavy railroad spike. We follow the steps of the actors, after the crime, from the testimony of several witnesses.
Lockard picked the child up and went over to the house of a neighbor, Paul Iorio, a short distance away. There, in response to a scream from defendant, Iorio opened the door. The accused and Lockard were before him. Lockard said in appellant's presence "Let me get in. The baby got hurt by an automobile." The automobile was described by Lockard as a Ford or a Chevrolet, '33 or '34, black coupé. It was variously described thereafter by both of them. Appellant also attributed the baby's wounds to an automobile accident. Other incidents took place in that house which will be later described. The child remained at Iorio's a short time. It was still living and was taken by Lockard in a truck to the Mercy Hospital. It died in a few hours. Appellant did not go with it to the hospital. She remained at the Iorio home.
When officer Wininger and police reporter Wertzberger went back with Lockard to the Iorio home from the hospital to see the accused, both she and Lockard insisted the child was killed by an automobile. She described carefully how the accident happened. She said that she and Lockard were walking with the boy on Jaggard Street, on the west side of the Avenue. Lockard was carrying the child; his head was resting on Lockard's shoulder, with his arms around Lockard's neck. The car came up, swerved and struck the boy's head as it rested on Lockard's shoulder. Neither Lockard nor the accused were injured because they were standing together and were away from the car. She and Lockard pointed out the exact place where the "accident" occurred, and described when and how it happened. The *Page 327
accused, after leaving the Iorio home, when Lockard was away from her, told the same story in the place where she telephoned to a doctor, and also where she called the hospital. When she notified her husband, she told him the same thing. She repeated this the next day at her mother-in-law's house to persons there. She seemed in rather a pleasant mood when Officer Flynn called to see her that day, and repeated the same tale about the automobile to him, saying that she had noticed the car again after the accident, and that a black cloth had been placed over the license plate so that it could not be known. Later that day, about 9:30 in the evening, when Flynn returned he said: "I know who killed your boy, Margaret." "You do?" she exclaimed. "Did you get the fellow? Was there two in the car?" He replied "I don't know who they were." There is no disagreement that the foregoing recital of facts actually took place. Lockard, when away from the accused, made similar statements, until the next day, that is the 22nd, when he made the first statement accusing this woman of the crime.
It is admitted the child was murdered in the manner first described. The automobile theory was amply disproved by the evidence, and was subsequently abandoned by the accused. For it she substituted a statement that Lockard actually brained the child with a spike, without her connivance or consent, and that after Lockard struck the boy he told her to say it was an automobile that hit him, threatening that if she did not tell that story she would receive the same treatment. But from the time of the striking of the blows, until they reached Irorio's home, did they have time to work up the details as to how, when and where, an automobile sideswiped the child, with a full account of the accident? The accused was separated from Lockard shortly after they went into Iorio's home. After his return from the hospital she was there but a short time before he left, and did not see him again until confronted by him the *Page 328
following night at about ten o'clock in the district attorney's office. While the record shows a friendship, it does not exhibit anywhere control by him.
The jury could consider the fabricated automobile incident as some evidence of guilt, not sufficient in itself to show she struck the fatal blow, but tending to show participation. Its purpose was to conceal the truth. Many decisions of this Court have held that the making of false and contradictory statements by the accused, with the intent to mislead the police and divert inquiry or suspicion, is indicatory of guilt: Com. v.Spardute, 278 Pa. 37, 43; Com. v. Jones, 297 Pa. 326, 333; Com.v. Danarowicz, 294 Pa. 190, 193; Com. v. Hadok, 313 Pa. 110. InCom. v. DuBoise, 269 Pa. 169, it was said at page 174: "What the accused said, as much as the things he did, on the night of the crime, were circumstances in the case to be considered by the jury in determining the question of his guilt or innocence. If when he spoke he spoke falsely, as he admits he did, concerning certain of the incidents of that night, the jury was entitled to consider these false statements and to draw from them the conclusion that his purpose in telling the untruths was to conceal the truth, and that his reason for the concealment of the truth was that he knew, if told, it would injure him." The jury would be justified in inferring that the telling of this false story by the mother of the helpless victim was not only inconsistent with her denial of complicity but so unnatural under the circumstances as to point toward guilt. The accused attempted to justify her falsehood by attributing it to fear created by Lockard's threat to kill her, unless she concealed the truth. But she clung to the story tenaciously when she was safely out of his presence, when she was surrounded by her family and when she was in the safe custody of the police. This circumstance in itself does not show the innocent conduct of a bereaved mother, restrained by terror from denouncing the murderer of her baby. It was a very important factor in the case. *Page 329
This brings up one of the most important parts of the evidence as it relates to the killing. The Commonwealth contends that the accused must have committed the crime because she was the only person who could possibly have committed it under her own story and her admissions.
Returning to the trip from the railroad station, the testimony shows that after they walked up First Avenue and turned right on Jaggard Street, Lockard carrying the boy, they went down Jaggard Street a short distance. The child was on his left shoulder, the baby's arms were around his neck. His face was towards Lockard's. His head would extend over the shoulder. This defendant was walking on the side of the road and to Lockard's left, and as the light of a car approached she stepped one pace behind Lockard and followed him down the street. Lockard had the railroad spike in his left side pocket. When 42 to 50 feet from the corner, they stopped. She says that with the child in that position, Lockard took the pin from his pocket, and with his right hand, while the automobile was passing, crushed in the top of the child's head. The Commonwealth contends this was a physical impossibility and that the accused was the only person who could and did take the spike and strike the child. This it is urged is what was done, she being behind Lockard, with the baby's head exposed to her attack.
This character of circumstantial evidence furnishing a natural inference, indicative of culpability, was for the jury. Its evidentiary force depends on the strength of the inference from the proven facts. If the jury believed the foregoing facts concerning the position of the actors, a strong inference, under the rules governing circumstantial evidence, would point to the guilt of the accused. To hold otherwise would destroy one of the foundations of circumstantial evidence. Here we have only two persons at the place where the crime was committed. The evidence clearly establishes the respective positions *Page 330
of the parties, the position of the child on the man's shoulder. The child was struck a blow that crushed the top of his skull, making a wound four inches long and an inch deep. Under this evidence it would have been extremely improbable for Lockard to have struck this blow and crush the skull as testified, inflicting cuts in the front and cuts in the back of its head, beginning just back of the hair line and extending back from the center line of the head, four to five inches long. It is true that there were contradictions as to the position of the child in later statements of the accused. She stated at one time that the boy was on Lockard's left shoulder, and, in a subsequent written statement, that it was on his left arm on the shoulder and was in the latter position when he struck it. In her last statement she said that Lockard put the boy down, stood for about five minutes until an automobile came along, and, just as it passed, struck the boy with the heavy spike. All these statements were for the jury, as were the contradictions. She, without any question, put herself in a position where it could be reasonably inferred that she struck the fatal blow, but as we indicated above, these were all matters for the jury to determine. It was such evidence that, if believed, could fasten guilt on her.
The Commonwealth's next contention is that the accused actually participated in the crime if she did not alone commit it, deriving this theory from her own story of exculpation, and her conduct after the slaying. It is only necessary to quote from her transcribed statement, remembering what we have said above as to the position of the boy on Lockard's shoulder. Here she related that Lockard briefly exhibited the spike to her as they left the station. She stated, after describing the length of the pin and its form — one inch in diameter and approximately six inches long — that Lockard said: "Something will happen to-night." She inquired his meaning.
"Q. What was his answer to that?
A. 'It is my business.' *Page 331
Q. When you got to First Avenue and Jaggard Street, what was his actions there in reference to looking at you?
A. He just stared at me.
Q. You started down the hill to the Pleasant Valley road?
A. Yes.
Q. Was you walking fast or slow?
A. Slow.
Q. Who was in front?
A. Me.
Q. Who had the boy in arms?
A. He did.
Q. About how far ahead of him was you?
A. About a step.
Q. When you got across the street — you know where the Iorio place is?
A. Yes.
Q. When across the street from his place what did he do? Did he take this pin out of his pocket?
A. Yes.
Q. Which pocket did he take it out of?
A. Left-hand side.
Q. He had the pin in which hand?
A. Right hand.
Q. Did you say anything to him?
A. No.
Q. Did you ask him what he was going to do?
A. No.
Q. What did you say to him?
A. Nothing.
Q. Did you say to him 'What are you going to do'?
A. Yes.
Q. What did he say then about business?
A. Said 'that is his business.'
Q. Which way did he turn?
A. Had his back turned up toward the road.
Q. Then what did he do? Did you hear any sounds? *Page 332
A. Yes.
Q. What was it?
A. Something rattling.
Q. He had the boy in his arms all the time?
A. Yes.
Q. Did you hear the child cry out?
A. He moaned.
Q. What did you do when you heard the moan?
A. I did not do anything — just standing there.
Q. Did you run across the road then?
A. Yes.
Q. Did you look back toward him?
A. Yes.
Q. What did you say then (is the boy dead)?
A. Yes.
Q. What did he say in answer to that?
A. Said he is still breathing."
A little later:
"Q. You heard a sound like something striking?
A. Yes.
Q. The baby moaned?
A. Yes.
Q. You ran across the street and turned around?
A. Yes.
Q. That is when you made the inquiry as if the baby was dead?
A. Yes.
Q. He said it was still breathing?
A. Yes."
This recital, reinforced by her conduct in attributing the brutal injury to an automobile, is certainly evidence from which the jury might find that she knew what was going on. By her own admission Lockard had exhibited to her in a sinister manner the spike; yet she maintains that no suspicion was aroused. By her own admission she not only failed to rush to the defense of her baby when Lockard was striking it, or to fight with the murderer, but rather she left him and ran across the road. *Page 333
She did not go to the child to comfort it or to determine the extent of its injury, but contented herself with calling to Lockard and asking if it were dead. The fact that immediately after the attack on her child she told a collected narrative, in some detail, of an accident, would justify the jury in believing, from her own statements, that the story could not have been agreed upon or fabricated in the short space of time that elapsed if she had been, as she said, completely ignorant of Lockard's purpose until the blows were struck.
Another factor creates an inference of guilty knowledge, and that is her identification at police headquarters, the following day, of the type of spike used in the commission of the crime. By her own story Lockard had exhibited this spike to her but once, after nightfall, and had hurled it away when the last blow was struck. Yet she was able to immediately indicate from several railroad spikes the one resembling the murder weapon. This fact points to a greater familiarity with the spike used in the crime than her statement would warrant.
All of the circumstantial evidence produced by the Commonwealth was sufficient to carry this case to the jury. In cases such as this, where direct proof is impossible, circumstantial evidence must be used to establish the crime. The fact that it is circumstantial does not detract from its value as evidence. In an early case, Com. v. Harman, 4 Pa. 269, Chief Justice GIBSON said, at page 271: "No witness has been produced who saw the act committed; and hence it is urged for the prisoner, that the evidence is only circumstantial, and consequently entitled to a very inferior degree of credit, if to any credit at all. But that consequence does not necessarily follow. Circumstantial evidence is, in the abstract, nearly, though perhaps not altogether, as strong as positive evidence; in the concrete, it may be infinitely stronger." There is no general rule to determine the quantity of circumstantial evidence necessary to overcome the presumption of innocence and carry the *Page 334
case to the jury. This must be weighed by the trial judge:Com. v. Bone, 64 Pa. Super. 44, 48; Com. v. Benz, 318 Pa. 465. The general rule as to circumstantial evidence was stated in Brown v. Schock, 77 Pa. 471, at page 479: "It is the right of the party to have this submitted to the jury, unless it be so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances." In Com.v. Benz, supra, it was said at page 472: "The evidence must be such as to exclude to a moral certainty, every hypothesis but that of guilt of the offense imputed; the facts and circumstances must not only be consistent with and point to the guilt of the accused, but must be inconsistent with his innocence." Certainly the evidence of the Commonwealth shows facts apparently inconsistent with the innocence of this accused, though it was for the jury to determine the degree of inconsistency. The facts, directly or by inference, suggested a motive for the destruction of the child, placed the accused at the scene of the crime, indicated either actual participation or guilty knowledge in its perpetration, and suggested its prearrangement. All these circumstances, the deliberation, the waiting for five minutes until a car came along, the fatal blow struck either by Lockard or the accused, make out a case from which the jury could find first degree murder. Convictions have been sustained in cases where the character of the circumstantial evidence was no stronger: Com. v. Smith, 270 Pa. 583; Com. v. Danz, supra; Com. v. Johnson, 162 Pa. 63. In theSmith case the facts showed a child was taken by its parents to a lonely spot and its head crushed by a stone. The accused father insisted that the child died as the result of a fall and there was no testimony to contradict him, save the inferences arising from the proof of the nature of the wounds. These were such as to make it next to a physical impossibility for the injury to have occurred as related. The evidence in the Johnson
case was entirely circumstantial; a child *Page 335
last seen in the custody of its father was subsequently found drowned. The father told false and contradictory stories to exculpate himself, and these, with evidence of a motive and the fact that death could not have been accidental, were sufficient to convict. In the Danz case, the widow was convicted two years after the death of her husband, for poisoning him. The fact of death from poison was shown and that the widow had purchased such poison prior to the husband's death. No motive could be proved, nor was the manner of the perpetration of the crime shown, but the jury found her guilty of murder, and the judgment was affirmed.
There is a third proposition. The evening after the murder, on the 22nd, the parties were brought together in the district attorney's office. There Lockard, in her presence, accused Mrs. Karmendi of killing the child. The evidence shows that she did not reply, she simply "sneered at him" and later said the automobile did it. Later on, in police headquarters when the two were together, each accused the other of committing the crime. The Commonwealth urged that her failure to deny the killing when first accused by Lockard was an admission, or evidence from which an admission could be found by the jury. The failure of the accused to deny this statement was unusual under the circumstances. She had full opportunity to do so, and the natural reaction of an innocent mother would have prompted an instant and vehement repudiation of the charge. Whether her conduct was such as to amount to an admission was a question for the jury to determine. It is well settled that the acquiescence of an accused to a statement made in his presence will be given the effect of an admission (see Com. v. Ballon,229 Pa. 323) provided there is motive or opportunity to deny:Com. v. Zorambo, 205 Pa. 109; Com. v. Mazarella, 279 Pa. 465. Here, if the accused were innocent, there was ample motive to deny. Ordinarily silence when one is charged with a crime should not be received as evidence of guilt and is not admissible *Page 336
for any purpose unless there is other evidence in the case from which guilt may be inferred. But where there is such evidence as in this case, "silence" when accused of the crime becomes itself evidence. This putative admission of itself was not sufficient to fix guilt, but with the other evidence in the case submitted by the Commonwealth the jury could consider it.
Superimposed on all the evidence, and ancillary thereto, we have the conduct of the accused after the fatal blows were struck. It is true when she went on the Iorio porch she screamed, but this was consistent with the plan to blame the slaying on an automobile accident. When the child was taken into the Iorio home, it was placed on a davenport. The accused never went near it. She neither kissed it nor ministered to it; she was calm, cool, collected and even indifferent throughout the time she was at the house. At one stage, she went into the kitchen with Lockard, where they put their arms around each other, and she inquired whether the baby would live. Lockard said he thought it would. There were no tears shed, no emotions exhibited. When she went to telephone the doctor, her demeanor was the same as it was when she went to the restaurant to call her husband. She was not excited nor crying at either place, nor was she when she met a neighbor on her way home. At the undertaker's the next day she showed no emotion whatever. She did not ask to see the baby. According to the Commonwealth's evidence she displayed such callous indifference that the undertaker remonstrated with her. The same day, the 22nd, when she was at her mother-in-law's house, with many people around, according to Officer Flynn, she was in a very happy frame of mind and appeared to be elated.
This is the Commonwealth's evidence. The jury might infer from such conduct actual depravity of heart and an unmotherly disposition. It might indicate a low degree of sensibility. These facts were for the jury. The conduct of an accused after the commission of a crime, *Page 337
which tends to show guilt, may throw light upon the intention of the accused: Com. v. Luccitti, 295 Pa. 190; Com. v.Danarowicz, supra; McMeen v. Com., 114 Pa. 300, 306. Where the deceased stands in a position of close relationship to the party accused, the latter's indifference or calloused behavior may be shown as circumstantial evidence. Thus in Com. v. Jones, supra, the defendant displayed complete indifference to the absence of his wife prior to the discovery of her murder, and in Com. v. Danz, supra, the widow made no concealment of her satisfaction over the death of her husband. In both cases this unusual conduct was treated as part of the evidence.
From all the facts in the record before us we conclude that the ingredients of murder in the first degree are present. The jury has found the accused guilty of murder in the first degree, and fixed the penalty at death. The evidence, though circumstantial, was not legally insufficient. It is not possible for this court to interfere with that finding and penalty unless there is a trial mistake. We now consider the second branch of the case.
We may dismiss all other assignments of trial errors as being without merit or as already answered. The last assignment must be sustained; that is, the court erred in not granting a change of venue. The Act of March 18, 1875, P. L. 30, fourth paragraph, provides: "When upon a second trial of any felonious homicide the evidence on the former trial thereof shall have been published within the county in which the same is being tried and the regular panel of jurors shall be exhausted without obtaining a jury," the venue may be changed on the application of the defendant. An application was made in strict conformity to the act. The act is not mandatory; it lies within the sound discretion of the court below: Com. v. Cleary,148 Pa. 26, but in a particularly notorious case in a given community, this court *Page 338
will review that discretion, and if in its judgment it is felt the accused could not help but be prejudiced in her subsequent trial by the feeling engendered, a new trial will be granted. The people's minds were inflamed when the press carried the horrid details of the crime and particularly so when the conduct of this defendant was related. One might remark, "any jury in Blair County will send that woman to the electric chair." That is not the proper spirit for a jury. They may do it, when the evidence on both sides is carefully considered, and so may a jury of another county, but this is quite different than the prevailing opinion in that county: "She is guilty." While ordinarily we would hesitate to place the burden of an additional trial on this county, justice must prevail regardless of expense. We sustain this assignment of error, and order and direct a change of venue to Cambria County.
Judgment reversed; a venire facias de novo awarded; an order for change of venue is forthwith filed.
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Decision for defendant rendered October 20, 1983.
The plaintiff appealed from the defendant's Opinion and Order No. IH 82-5, denying plaintiff's claim that interest paid upon a state "pick up" tax should have been included in *Page 345
the plaintiff's refund when the assessed deficiency was subsequently reduced. The following facts have been stipulated by the parties:
1. Spencer R. Collins died March 16, 1977.
2. Plaintiff filed its federal estate tax return on December 16, 1977, electing to defer payment of the tax attributable to interest in a closely held business as allowed by IRC § 6166 (1954). On the return, the plaintiff deducted all interest that had accrued and was estimated to accrue in the future on the deferred tax as an administrative expense under IRC § 2053 (1954).
3. The plaintiff filed its Oregon inheritance return on December 16, 1977, showing no liability for the state "pick up" tax.
4. The plaintiff made certain payments to the defendant on December 16, 1977, February 6, 1978, and August 14, 1979.
5. On August 29, 1979, the defendant issued an Inheritance Tax Receipt of $863,476.72 which included $31,140.59 of interest.
6. In 1979, an IRS audit disallowed the plaintiff's claimed deduction for estimated future interest on the deferred estate tax liability, permitting only a deduction for interest actually accrued. This adjustment increased the federal credit for state death taxes paid (IRC § 2011 (1954)) to $948,910.36.
7. Based upon this adjustment, the defendant asserted a deficiency against the plaintiff, alleging plaintiff owed an additional $148,282.34, including a "pick up" tax and interest.
8. IRS granted the plaintiff's claimed refund based on interest on the deferred tax, reducing the IRC § 2011 (1954) credit to $903,627.
9. Based upon this reduction, the defendant allowed plaintiff a credit of $45,283.30 against the alleged "pick up" tax liability as of December 16, 1979, resulting in a revised claim for $105,877.60, including "pick up" tax and interest. *Page 346
10. The plaintiff paid the full amount of the claimed deficiency, including interest, on August 16, 1980, and the defendant issued a Supplemental Inheritance Tax Receipt on August 22, 1980.
11. Proration of payments to principal and interest resulted in a zero balance for each on August 16, 1980.
12. As a result of adjustments and credit allowed by IRC § 2011 (1954) upon plaintiff's paying of accrued interest, the plaintiff filed a claim for a refund on December 21, 1980, for $34,035.04 of "pick up" tax plus interest thereon. The defendant refunded the "pick up" tax but disallowed the claim for interest.
13. Based upon similar adjustments in credit, the plaintiff's subsequent claims for refunds were allowed by the defendant, resulting in a full refund to plaintiff of all "pick up" tax paid to defendant.
14. On March 8, 1982, the defendant also refunded $9,336.96, resulting from a reduction of basic inheritance tax by the allowance of deductions for additional administrative expenses.
15. The defendant refused to refund any interest paid by the plaintiff attributable to late payments of Oregon inheritance "basic" and "pick up" tax refunds to the plaintiff.
The plaintiff seeks to recover interest paid to the defendant on an asserted deficiency of the state "pick up" tax when such deficiency was subsequently refunded or credited to the plaintiff and a refund of interest paid by the plaintiff on an asserted deficiency of the basic inheritance tax attributable to a refund for allowance of deductions for additional administrative expenses.
The plaintiff alleges that it is entitled to the interest refunds because the defendant refunded or credited the entire amount of "pick up" tax which had been assessed against the plaintiff and $9,336.96 of the basic inheritance tax and that no provision of Oregon law prohibits the refund of interest which has been paid on a refunded inheritance tax.
The defendant contends that the subsequent cancellation of a validly assessed tax does not cancel the duty to pay interest charged for the late payment. *Page 347
During the subject period, Oregon law imposed a "pick up" tax as an additional inheritance tax equal to the amount by which the maximum IRC § 2011 (1954) credit exceeded the amount of the state basic inheritance tax. ORS 118.100(4) (1975 Replacement Part). The due date of the "pick up" tax was nine months after the date of decedent's death (ORS 118.100(5)) (1975 Replacement Part) and interest on the "pick up" tax was assessed at one percent per month from that date. ORS 118.260(4) (1975 Replacement Part.)
Adjustments in the amount of the federal taxable estate changed the amount of the federal credit. IRC § 2011(b) (1954). Such changes also affect the amount of the "pick up" tax and are so recognized by defendant's administrative rule, OAR 150-118.100(4) (1975).
OAR 150-118.260(6) (1981) directs that: "Where payment exceeds the amount of tax shown by the return or as determined by audit of the return, the excess shall be refunded * * *. The Department does not have authority to pay interest on the refund."
The statute on which this rule is based is silent regarding refund of interest, merely mandating a refund of any excess tax paid.
The plaintiff alleges that the decision in Bryant v. Dept. ofRev., 6 OTR 559 (1975), directly controls the instant case.Bryant involved a claim by a decedent's widow for the refund of inheritance taxes plus interest assessed for late payment which decedent's estate had paid. The plaintiff also claimed interest on the amount of the refund. The court found that the decedent's property did not pass to the plaintiff in a taxable transfer because she proved that she had given fair consideration for her ownership therein.
The court ruled that the plaintiff was entitled to a refund of the inheritance tax plus a refund of the interest paid on account of late payment of inheritance taxes "which taxes should not have been imposed, under the court's determination." (6 OTR at 578.) However, the court denied plaintiff's claim for a refund of interest on the amount of the refund because no statute provided for the payment of such interest.
The defendant asserts that Bryant is distinguishable from the case at hand because the inheritance tax and interest *Page 348
paid with respect to a one-half interest in joint property had been paid on property which was actually exempt from inheritance tax, having been acquired by the plaintiff for fair consideration. The defendant alleges that the statutory scheme does not contemplate exemption from the "pick up" tax but requires that the tax be paid nine months after decedent's death, subject to subsequent abatement or reimbursement.
The defendant cites Manning v. Seeley Tube Box Co.,338 U.S. 561, 70 S Ct 386, 94 L Ed 346 (1950), as support for its allegation that where a deficiency and interest have been validly assessed, a subsequent abatement of the deficiency does not abate the interest previously assessed on that deficiency.Manning involved a corporate claim for refund of interest paid on a tax deficiency when that deficiency was eliminated by carrying back a subsequent net operating loss.
The plaintiff alleges that the N.O.L. carry-back analogy to this case is invalid because "unlike the once-assessed pick-up tax, the income tax is assessed many times (once each year.)" (Plaintiff's Reply Brief at 3.)
1. However, IRC § 172 (1954), allowing an N.O.L. deduction, and IRC § 6166 (1954), allowing an extension of time for payment of estate tax where the estate consists largely of interest in a closely held business, have striking similarities. Both allow elections by a taxpayer regarding certain assessed taxes. There may be definite benefits to the taxpayer by so electing, but until the taxpayer chooses this alternative method, the assessed deficiency is valid.
In Manning, on August 2, 1943, the Commissioner of Internal Revenue assessed deficiencies in the corporation's 1941 taxes, with interest from the date the tax was properly due to the assessment date. On March 3, 1944, the corporation filed its return for the fiscal year ending September 30, 1943, showing an N.O.L. for that year. The election of IRC § 122(b)(1) (1939) allowed a carry back sufficient to abate completely the corporation's tax liability for 1941; therefore, the taxpayer filed for a refund of the 1941 tax paid and for the abatement of the assessed deficiency and interest. The Commissioner abated the deficiency but refused to refund all the tax that had been paid, retaining an amount equal to the *Page 349
interest which had been assessed on the deficiency. The Supreme Court upheld the Commissioner's decision.
In the case before this court, an inheritance tax, including a "pick up" tax, was assessed by the defendant pursuant to ORS118.100(2). The full amount of the assessed taxes plus interest had been paid by August 22, 1980. By the taxpayer's election to take advantage of the alternative procedure offered by IRC § 6166 (1954), the IRC § 2011 (1954) credit was affected, resulting in changes in Oregon's "pick up" tax.
2. Until that credit was changed, through events completely within the taxpayer's control, the inheritance tax assessed by the defendant was a valid assessment. Statutory interest accrued against that assessment until the tax was paid or abated through the consequences of the taxpayer's election regarding its federal estate tax.
The court in United States v. Koppers Co., 348 U.S. 254,75 S Ct 268, 99 L Ed 302 (1955), concerning an abatement of excess profits taxes, ruled that the subsequent granting of relief did not operate retroactively to relieve the taxpayer of the duty to pay the correct tax on the return date. The court found that the abatement did not affect the deficiency which existed until relief was granted; therefore, the taxpayer was not relieved of the duty to pay interest on the deficiency for the intervening period.
The plaintiff asserts that: "Had the audit been completed immediately and the apparent pick-up tax liability asserted at such time, Plaintiff could have immediately paid the tax without interest. Plaintiff could then be made whole merely by a refund of the pick-up tax." (Plaintiff's Opening Brief at 14.)
3. Plaintiff filed its Oregon inheritance tax return on December 16, 1977. The last refund for the "pick up" tax was credited to the plaintiff by the defendant after December 16, 1981. Plaintiff overlooks the fact that had the "pick up" tax been paid earlier, the plaintiff would have lost the use of that money until the final refund was made (more than four years after the initial inheritance tax was due and payable). Therefore, a mere refund would have made plaintiff no more *Page 350
"whole" than having use of the money and paying interest for late payments at a future date.
The plaintiff asserts that the reasoning in Bryant allows a refund of interest paid if no statute prohibits such a refund. Alleging that no Oregon statute restricts the refund of interest by a taxpayer of inheritance tax which is later refunded, plaintiff contends that the defendant erred in not including the interest in plaintiff's refund. The court's reasoning in Bryant, however, was based upon the determination that the tax in question "should not have been imposed." (6 OTR at 578.) In the present case, the tax imposed was valid and owing until the plaintiff made certain elections which caused abatements of the assessed tax.
4. It should be noticed that the interest being charged is, in law, a penalty. When interest is charged on a delinquent tax, it is deemed to be a penalty, not a consideration for the forebearance of money. The charge is a means of insuring prompt payment of the tax and is not a part of the tax. Colby v. Cityof Medford, 85 Or. 485, 527-28, 167 P. 487 (1917); Parr v. Dept.of Rev., 6 OTR 259, 261 (1975), rev'd on other grounds 276 Or. 113, 553 P.2d 1051 (1976).
The court finds that taxes assessed against the plaintiff by the defendant were valid at the time of assessment. Subsequent events which developed at the election of the taxpayer resulted in certain abatements of the validly assessed taxes. Until that abatement or payment of the assessed taxes, a statutory interest penalty was validly invoked. The court upholds the defendant's actions in denying a refund of that interest. No costs. *Page 351
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The appeal in this case is from an order and decree dismissing a bill of complaint filed to foreclose a mortgage. The defense was that the contract constituting the basis of the suit was usurious and unenforceable under the provisions of section 4855 R. G. S., 6942 C. G. L.
It appears from the record that the note and mortgage were executed on July 22d 1927; that the note was for the sum of $6,000.00, payable one year after date, with *Page 681
interest at 8% payable quarterly after date. That no money was paid over to the mortgagor at the time but that such money as was paid over to the mortgagor by the mortgagee appears to have been paid over some time in October 1927, and was at the outside not more than $4800.00.
The note was endorsed and the mortgage assigned to John F. McCullough and Mary McCullough, his wife, on October 5th, 1927.
The bill of complaint was filed on the 23rd day of November, 1927, it being alleged that the complainants exercised their option to accelerate the maturity and to foreclose the mortgage because the quarterly interest had not been paid November 22nd.
Two attempts were made to take depositions of one of the complainants and the depositions were suppressed for good and sufficient legal reasons. Thereafter, time was extended in which to take testimony and an attempt was made to take the testimony of the witness John F. McCullough. The testimony of McCullough was taken before a Special Master after the expiration of the time allowed in the order enlarging the time for taking testimony; and upon timely motion being made, this testimony was also suppressed. The order of court suppressing such testimony was without error.
The rule is well established in this State, that:
"If a borrower promises to pay, or is in anywise obligated to pay a bonus or any part thereof for a loan, which bonus is paid or promised to be paid by a third party as any consideration for the loan, and the amount so paid or promised to be paid for which the borrower is in anywise liable, is in itself, or in addition to any interest paid or promised to be paid, more than the rate of interest which the statutes of Florida allow to be charged, collected or received, the transaction is usurious. *Page 682
and also that:
"When a defendant sets up usury as a defense, the burden of proof is on him to establish it; but when the usury is proven the burden of proving that the holder of usurious paper purchased it before maturity without notice of the usury, is upon the party relying on such purchase."
See Tucker vs. Fouts, 73 Fla. 1215, 76 So. 130.
The complainants in the court below, appellants here, failed to meet the burden of proof required in such cases. We find no reversible error disclosed by the record and, therefore, the decree appealed from should be affirmed.
It is so ordered.
Affirmed.
WHITFIELD, ELLIS, TERRELL AND DAVIS, J.J., concur. BROWN, J., dissents.
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Argued September 28, 1937.
We are of one mind that the evidence in this record demonstrates that the questions of negligence and contributory negligence were for the jury. Nothing would he gained by a detailed recital of the facts, as that is all the motion for judgment n. o. v. calls for.
Judgment affirmed.
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251 F.3d 911 (10th Cir. 2001)
CHRISTOPHER JOHN BOYCE, Petitioner-Appellant,v.JOHN ASHCROFT,* Attorney General of the United States; JOHN HURLEY, Warden, U.S. Penitentiary, Administrative Maximum Security, Florence, Colorado, Respondents-Appellees.
No. 98-1280
UNITED STATES COURT OF APPEALS TENTH CIRCUIT
June 4, 2001
1
Appeal from the United States District Court for the District of Colorado (D.C. No. 98-D-698)Sam S. Sheldon, La Jolla, California, for Plaintiff-Appellant.
2
Kathleen L. Torres, Assistant United States Attorney (Thomas L. Strickland, United States Attorney, with her on the brief), Denver, Colorado, for Defendants-Appellees.
3
Before EBEL and LUCERO, Circuit Judges, and VRATIL,** District Judge.
4
VRATIL, District Judge.
5
Petitioner-appellant Christopher John Boyce, a federal prisoner, seeks a writ of habeas corpus under 28 U.S.C. 2241, ordering defendants to transfer him to the federal prison in Sheridan, Oregon. Petitioner asserts that defendants transferred him from a state prison in Minnesota to the ultra-maximum federal penitentiary in Florence, Colorado in retaliation for his exercise of First Amendment rights, and that conditions at Florence violate his Eighth Amendment rights. The district court dismissed the petition without prejudice, finding that petitioner is not attacking the legality of his custody or seeking release from illegal custody, but seeking a transfer to a specific federal prison, and that such relief is not cognizable in habeas corpus. For reasons set forth below, we affirm.
Factual Background1
6
In 1977, a federal judge sentenced petitioner to a 40-year term of imprisonment for espionage, in violation of 18 U.S.C. 794. In January 1980, petitioner escaped from the Federal Correctional Institution ("FCI") at Lompoc, California. Law enforcement officials apprehended petitioner in August of 1981 and returned him to federal custody. A federal court convicted him of 16 counts of armed robbery and related violations which petitioner had committed while in escape status, and the court sentenced him to an additional 28 years. The Bureau of Prisons ("BOP") then incarcerated petitioner at the United States Penitentiary ("USP") at Leavenworth, a level five facility.
7
In 1982, three members of the Aryan Brotherhood attacked petitioner. For his protection, the BOP transferred him to the USP at Marion, Illinois, a level six facility. Six years later, in 1988, the BOP transferred petitioner to Oak Park Heights ("OPH"), the most secure state prison in Minnesota. In 1997, petitioner's case manager, with petitioner's agreement, requested that the BOP transfer petitioner to the FCI at Sheridan, Oregon, a medium security institution. A BOP community corrections manager forwarded the request and also recommended placement at Sheridan. The BOP, however, denied the transfer.
8
Shortly after the BOP denied the transfer, petitioner submitted a newspaper article which the Minneapolis Star Tribune published on February 15, 1998. The article, entitled "Locked up, Still a Killer," advocated execution of Craig Bjork, a state inmate at OPH, and any other prisoner who had been convicted of murder. The article also detailed conditions of confinement at OPH. In response, state prison officials asked the BOP to transfer petitioner elsewhere. Petitioner claims that the transfer request was in retaliation for the article, while defendants assert that petitioner was no longer safe at OPH. In any event, on March 10, 1998, the BOP transferred petitioner to the ultra-maximum federal penitentiary at Florence, Colorado.
9
Two weeks later, on March 26, 1998, petitioner filed this application for a writ of habeas corpus under 28 U.S.C. 2241. Petitioner asserts that the transfer violated his First and Eighth Amendment rights. Petitioner notes that Florence is the most secure federal penitentiary in the United States. Inmates are locked down in single cells 24 hours a day, with 7.5 hours a week in individual recreation cages. Petitioner, age 47, has had only three minor infractions in his last 19 years of incarceration. He is eligible for placement in a half-way house in September 2002. At Marion, petitioner had daily access to a phone and "contact" personal visits. At OPH, he had daily interaction with other inmates for 15 hours a day, daily use of a telephone, a word processor in his cell, daily use of a track and gym, contact personal visits and legal visits. Plaintiff argues that defendants have no security or safety reasons to place him in what is essentially solitary confinement at Florence, and that defendants are punishing him for exercising his First Amendment rights.
Analysis
10
The threshold issue is whether the district court properly found that under 28 U.S.C. 2241 it lacked jurisdiction to decide whether defendants had violated the First and Eighth Amendment rights of plaintiff when they transferred him from a state prison to an ultra-maximum federal prison. This case raises important questions about the precise line between habeas corpus actions and claims under 42 U.S.C. 1983 and Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Generally, because they contest the fact or duration of custody, prisoners who want to challenge their convictions, sentences or administrative actions which revoke good-time credits, or who want to invoke other sentence-shortening procedures, must petition for a writ of habeas corpus. See Preiser v. Rodriquez, 411 U.S. 475, 487-88 (1973). Prisoners who raise constitutional challenges to other prison decisions - including transfers to administrative segregation, exclusion from prison programs, or suspension of privileges, e.g. conditions of confinement, must proceed under Section 1983 or Bivens.
11
The more common habeas petitions are those which challenge the validity of a conviction and/or sentence under 28 U.S.C. 2254 (by prisoners in state custody) or 28 U.S.C. 2255 (by prisoners in federal custody). Petitions under Section 2255 must be filed in the district in which petitioner was convicted and sentenced. In this case, however, petitioner proceeds under 28 U.S.C. 2241, which allows him to attack the execution of a sentence in the district where he is confined.2
12
In Preiser the Supreme Court appeared to draw a line between civil rights claims and habeas actions when it ruled that prisoners could not seek restoration of good time credits under Section 1983. The Court noted that Section 1983 is a proper vehicle by which to challenge conditions of confinement, but that demands to restore good time credits are within the core of habeas because they attack the duration of the prisoner's physical confinement. 411 U.S. at 485-89. In dicta, however, the Court suggested that habeas might also provide a remedy for a challenge to conditions of confinement.3 Given this suggestion, circuit and district courts have struggled for 27 years to ascertain exactly what line the Supreme Court intended to draw between habeas and civil rights actions.
13
Petitioner argues that the Preiser dicta supports his jurisdictional claim and that Section 2241 affords relief on a claim that an inmate is held in an unconstitutional place of confinement. Petitioner also relies upon Johnson v. Avery, 393 U.S. 483 (1969), in which a state prisoner filed a motion in federal court attacking his confinement in maximum security as punishment for assisting other inmates with legal matters in violation of prison regulations. The district court treated the motion as a writ of habeas corpus and ordered petitioner released from maximum security. See id. at 484. The Sixth Circuit reversed, concluding that the regulation did not conflict with the right of habeas corpus. See id. at 485. The Supreme Court then reversed, holding that a state may not bar inmates from assisting other inmates on legal matters unless it provides a reasonable alternative. See id. at 490. The Supreme Court did not address whether the matter was properly raised in a habeas petition, and defendants contend that Johnson does not stand for the proposition that prisoners may raise conditions of confinement claims in habeas. See United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 38 (1952) (case that does not address jurisdiction cannot be used as precedent for finding jurisdiction).
14
Petitioner also relies on In re Bonner, 151 U.S. 242 (1894), in which a federal inmate claimed that he was illegally sentenced to serve his sentence in a state facility. Defendants characterize In re Bonner as a traditional attack on the "fact" of confinement in a particular institution where the inmate claims that the facility has no jurisdiction over him. Defendants point out that by contrast, petitioner in this case disputes the BOP decision to house him in a particular facility within its jurisdiction, but not the underlying legality of federal custody. Further, in Bonner, the Supreme Court did not address whether the matter was properly raised in a habeas petition.
15
Petitioner relies in particular upon Montez v. McKinna, 208 F.3d 862, 864 (10th Cir. 2000), in which a panel of this Court allowed a state prisoner pursuant to Section 2241 to challenge his transfer from a state prison in Wyoming to a private prison in Texas and then to a private prison in Colorado. In Montez, the prisoner alleged that the transfers violated, inter alia, his constitutional rights under the Commerce and Supremacy Clauses and the Fifth and Fourteenth Amendments. The panel noted that petitioner challenged the location of his confinement, not the conditions of confinement, and that he thus properly brought the claim under Section 2241. See id. at 865.
16
Petitioner also relies upon an unpublished decision of this court, Cooper v. McKinna, No. 99-1437, 2000 WL 123753 (10th Cir. Feb. 2, 2000), in which a state prisoner filed a Section 2241 petition which alleged that Colorado state prison officials had illegally transferred him to private out-of-state facilities to serve portions of his state sentence. The panel found that the prisoner had properly filed his action under Section 2241 and then determined that he had failed to exhaust his state remedies. Defendants counter that Montez and Cooper dealt only with interstate transfers of state prisoners, and that we did not characterize those cases as ones which challenged conditions of confinement but rather as claims which attacked the execution of a sentence, more precisely, the fact and duration of confinement in a particular state. See Montez, 208 F.3d at 865. Defendants also argue that based upon McIntosh v. United States Parole Comm'n, 115 F.3d 809 (10th Cir. 1997), this case is not properly brought under Section 2241.
17
In McIntosh, the district court dismissed a Section 2241 petition in which a federal prisoner challenged the Parole Commission's decision to revoke his parole. On appeal, because the petitioner sought to proceed in forma pauperis, we first addressed whether the proceeding was a civil action and thus subject to the filing fee obligations of 18 U.S.C. 1915. Relying on United States v. Simmonds, 111 F.3d 737, 744 (10th Cir. 1997), which had held that habeas corpus proceedings under Sections 2254 and 2255 are not civil actions under the Prison Litigation Reform Act, we found that for the purposes of Sections 1915(a)(2) and (b), proceedings under Section 2241 are not civil actions. We reasoned that the fundamental purpose of a Section 2241 proceeding is the same as that of a Section 2254 or Section 2255 proceeding, "an attack by a person in custody upon the legality of that custody," and noted that "the traditional function of the writ is to secure release from illegal custody." McIntosh, 115 F.3d at 811 (quoting Preiser, 411 U.S. at 484). In doing so, we rejected the Seventh Circuit view that a Section 2241 action may properly challenge conditions of confinement. See Thurman v. Gramley, 97 F.3d 185, 187 (7th Cir. 1996) (holding that 2241 petition was mislabeled 2255 action, and finding that 2241 action is functional stage in the criminal proceeding), overruled by Walker v. O'Brien, 216 F.3d 626 (7th Cir. 2000). We reasoned as follows:
18
[A]lthough a 2241 attack on the execution of a sentence may challenge some matters that occur at prison, such as deprivation of good-time credits and other prison disciplinary matters, this does not make 2241 actions like "conditions of confinement" lawsuits, which are brought under civil rights laws. A habeas corpus proceeding "attacks the fact or duration of a prisoner's confinement and seeks the remedy of immediate release or a shortened period of confinement. In contrast, a civil rights action . . . attacks the conditions of the prisoner's confinement and requests monetary compensation for such conditions." Rhodes v. Hannigan, 12 F.3d 989, 991 (10th Cir. 1993). . . . Thus, a 2241 action challenging prison disciplinary proceedings, such as the deprivation of good-time credits, is not challenging prison conditions, it is challenging an action affecting the fact or duration of the petitioner's custody. Section 2241 actions are not used to challenge prison conditions such as "insufficient storage locker space . . . and yes, being served creamy peanut butter." . . . the essential nature of all 2241 actions is a challenge to federal custody.
19
McIntosh, 115 F.3d at 811-12 (citing Falcon v. United States Bureau of Prisons, 52 F.3d 137, 138 (7th Cir. 1995) (if prisoner seeks "quantum change" in level of custody, such as freedom, remedy is habeas corpus; if he seeks different program, location or environment, challenge is to conditions rather than fact of confinement and remedy is under civil rights law)) (further citations and quotations omitted).
20
Defendants also cite Rael v. Williams, 223 F.3d 1153 (10th Cir. 2000), in which a state prisoner challenged his confinement in a private prison, asserting that officials had violated his due process and equal protection rights, as well as his rights under the First and Eighth Amendments. In Rael we stated that:
21
[t]hough the Supreme Court has not set the precise boundaries of habeas actions, it has distinguished between habeas actions and those challenging conditions of confinement under 42 U.S.C. 1983. We have endorsed this distinction and have recognized that federal claims challenging the conditions of confinement generally do not arise under 2241.
22
223 F.3d at 1154 (citing McIntosh, supra; Carson v. Johnson, 112 F.3d 818, 820-21 (5th Cir. 1997) (if favorable determination would not automatically entitle prisoner to accelerated release, proper vehicle is 1983 and not 2254)). In Rael we also stated that "[u]nder Montez, the fact that an inmate is transferred to, or must reside in, a private prison, simply does not raise a federal constitutional claim, though it may be raised procedurally under 2241." 233 F.3d at 1154.
23
Defendants argue that Rael leads to the conclusion that an inmate may invoke Section 2241 to challenge a sovereign's authority to detain him under any circumstances, but that if a prisoner wishes to address a decision to place him in a particular facility or attack the conditions that result from such a placement, he must bring a civil rights action. We agree.
24
Montez and Cooper do not persuade us that Section 2241 affords petitioner an appropriate procedure in which to attack the constitutionality of his transfer to Florence. Those cases in fact are distinguishable because they involved state prisoners who were challenging the fact of incarceration in states other than those in which they had been convicted and sentenced. In other words, they were challenging a state's authority to imprison them in another state. Their claims were properly raised under Section 2241 because they challenged the fact or duration of custody in a particular state. Similarly, Rael involved a state prisoner who was challenging the fact of incarceration in a private prison. His claim was properly raised under Section 2241 because he challenged the fact or duration of custody by the incarcerating entity. In contrast, in the case before us, petitioner is a federal prisoner who is challenging the BOP's choice of prisons. He does not challenge the fact or duration of his federal custody but rather his conditions of confinement. His claim is therefore properly raised under Bivens and not in habeas.4
25
In sum, Section 2241 may be used to challenge the underlying authority of an entity to hold a prisoner in custody, whether that entity is a separate jurisdiction or a private company. It may not be used to challenge a prisoner's placement within a given jurisdictional entity, such as the federal prison system. Such an action must instead be brought under Bivens or Section 1983.
26
We hold that petitioner may not raise his challenges to conditions of confinement in a Section 2241 petition. The order of the district court is therefore AFFIRMED.
NOTES:
*
Pursuant to Fed.R.App.P. 43(c)(2), John Ashcroft is substituted for Janet Reno, Attorney General, as a defendant in this action.
**
The Honorable Kathryn H. Vratil, United States District Judge for the District of Kansas, sitting by designation.
1
The facts are based primarily upon petitioner's application for writ of habeas corpus under 28 U.S.C. 2241.
2
28 U.S.C. 2241 provides as follows:
Power to grant writ
(a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions. The order of a circuit judge shall be entered in the records of the district court of the district wherein the restraint complained of is had.
(b) The Supreme Court, any justice thereof, and any circuit judge may decline to entertain an application for a writ of habeas corpus and may transfer the application for hearing and determination to the district court having jurisdiction to entertain it.
(c) The writ of habeas corpus shall not extend to a prisoner unless--
(1) He is in custody under or by color of the authority of the United States or is committed for trial before some court thereof; or
(2) He is in custody for an act done or omitted in pursuance of an Act of Congress, or an order, process, judgment or decree of a court or judge of the United States; or
(3) He is in custody in violation of the Constitution or laws or treaties of the United States; or
(4) He, being a citizen of a foreign state and domiciled therein is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission, order or sanction of any foreign state, or under color thereof, the validity and effect of which depend upon the law of nations; or
(5) It is necessary to bring him into court to testify or for trial.
(d) Where an application for a writ of habeas corpus is made by a person in custody under the judgment and sentence of a State court of a State which contains two or more Federal judicial districts, the application may be filed in the district court for the district wherein such person is in custody or in the district court for the district within which the State court was held which convicted and sentenced him and each of such district courts shall have concurrent jurisdiction to entertain the application. The district court for the district wherein such an application is filed in the exercise of its discretion and in furtherance of justice may transfer the application to the other district court for hearing and determination.
3
The Preiser Court stated:
[A] 1983 action is a proper remedy for a state prisoner who is making a constitutional challenge to the conditions of his prison life, but not to the fact or length of his custody. . . . This is not to say that habeas corpus may not also be available to challenge such prison conditions. When a prisoner is put under additional and unconstitutional restraints during his lawful custody, it is arguable that habeas corpus will lie to remove the restraints making the custody illegal. But we need not in this case explore the appropriate limits of habeas corpus as an alternative remedy to a proper action under 1983. That question is not before us.
411 U.S. at 498-99 (internal citations omitted).
4
Petitioner indeed has filed a Bivens action, seeking an injunction which directs the BOP to transfer him to FCI Sheridan.
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
August 24, 2005
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 05-1048
(D.C. No. 99-RB-2196 (PAC))
EDWARD G. NOVOTNY, in his (D. Colo.)
individual capacity as Trustee of
MIDWEST LIMITED and SUNRISE
INVESTMENTS; ETTA B.
NOVOTNY,
Defendants-Appellants,
STATE OF COLORADO,
DEPARTMENT OF REVENUE,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before O’BRIEN , HOLLOWAY , and BALDOCK , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
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.
Edward and Etta Novotny, appearing pro se, appeal from a post-judgment
order correcting the legal description of real estate involved in a federal tax
foreclosure action. We affirm.
The United States brought suit to reduce to judgment assessments against
Mr. Novotny for income taxes for tax years 1989, 1990, and 1991, along with
penalties and interest, and to foreclose liens upon several parcels of real property.
The district court entered judgment and ordered the properties sold. One half of
the sale proceeds were to be applied to Mr. Novotny’s federal tax liability, and
upon satisfaction of this liability, remaining funds to his state tax liability. The
other half of the proceeds were to be paid to Mrs. Novotny. The court also
entered a deficiency judgment against Mr. Novotny and in favor of the United
States in the event proceeds of the sale did not satisfy the federal tax debt. On
appeal, this court affirmed.
Prior to the sale of one of the properties, the government informed the
Novotnys that it had discovered an error in the legal description set out in the
order of foreclosure and decree of sale. The Novotnys filed a motion to vacate
the order and decree; the government filed a motion under Fed. R. Civ. P. 60 to
-2-
correct the legal description. The district court denied the Novotnys’ motion, and
granted the government’s request. This appeal followed.
We review the district court’s rulings on the parties’ post-judgment
motions “only for an abuse of discretion.” Cashner v. Freedom Stores, Inc .,
98 F.3d 572, 576 (10th Cir. 1996) (reviewing ruling on Rule 60(b) motion). See
also McNickle v. Bankers Life & Cas. Co ., 888 F.2d 678, 680 (10th Cir. 1989)
(reviewing ruling on Rule 60(a) motion). The Novotnys have advanced no
comprehensible argument to support their claim that the district court abused its
discretion by denying their motion to vacate. Further, we perceive no abuse of
discretion in the district court’s grant of the government’s motion, in that Rule 60
permits the correction of errors such as the inaccurate legal description at issue
here. 1
The judgment of the district court is AFFIRMED. The Novotnys’ pending
motions are DENIED.
Entered for the Court
Terrence L. O’Brien
Circuit Judge
1
Rule 60(a) provides for the correction of “[c]lerical mistakes in judgments”
and “errors therein arising from oversight or omission” at any time. Rule 60(b)
allows the court to relieve a party from judgment on a motion filed “within a
reasonable time” for any reason “justifying relief from the operation of the
judgment.”
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In February, 1937, the plaintiff, who is defendant in error here, filed its declaration in the Circuit Court of Dade County in six counts claiming damages against plaintiffs in error, as defendants, for false and fraudulent representations in connection with the sale of certain lands and interest in lands in Lake County on which oil and gas was then being prospected for; to-wit, by the construction of an oil well. Demurrers and motions for compulsory amendment challenging the sufficiency of the declaration and each count thereof were overruled. The general issue and pleas denying the material allegations of each count of the declaration were proffered and on the issues so made, the cause went to trial resulting in a verdict and judgment for the plaintiff to which the writ of error now under review was prosecuted.
More than fifty assignments of error are brought up for review. As was announced by this Court in a former opinion, it is incomprehensible that so many errors could have been committed by the Court below in the trial of a single cause, but in this case, the declaration was so verbose *Page 213
and was impregnated with enough prejudicial and immaterial matter, that we are at a loss to say to what extent error appears. It might have been cured in part by charges requested and refused but failing in this, error impinges on error so it becomes impossible to say to what extent the error committed was prejudicial.
In the first place, the case was litigated on the wrong theory. There was a studied attempt to apply old rules to a modern aspect and they could not be made to synchronize. If grandma's old buggy mare had been on the block for sale and the members of the missionary society present to bid and purchase, the episode would have clicked but the rules of law and ethics governing a transaction like that have little application to the guaranties involved in a speculative transaction such as the sale of oil leases. In fact, buying leases in oil wells, and oil lands is, though legitimate, one of the most hazardous and highly speculative businesses in which one can engage. Judged by the numerical history of successes and failures in this field, poker and horse racing can give it Aces and Spades and then win one hundred to one, perhaps better. One trading in such a commodity is presumed to know this and to know that his judgment as to when a well will come in, what it will produce, or how long it will produce is worth about as much as that of the man who offers the stock or the lease for sale.
We do not mean to imply that there are not signs and symbols by which one versed in the oil business may tell that there is a possibility of oil in certain areas and that a prospective well will produce oil but even those are speculative and any representation based on them is speculative and of uncertain value. Any guarantee as to what's in a drilled hole three thousand feet deep, or what's coming out of it, or how long it will continue to come is based on nothing more tangible than hope and one buying oil leases is presumed to know this. One embarking in a speculative *Page 214
field must litigate under the rules there controlling. He will not be permitted to barter in a speculative field and then if he lose, litigate his cause in reliance on guaranties pertinent to the sale of non speculative commodities.
The appellee did not purchase any stock in either of the plaintiffs in error. What it did purchase was the right to prospect for oil and gas on about two hundred acres of land near the oil well in question in addition to a very small undivided fractional interest in the land on which the well was located which was also subject to a prior oil lease. No one under the sun could approximate the value of such a purchase. The allegations in the declaration refer generally to the well and not to the lands purchased. In the verdict and judgment rendered, this fact was not taken into consideration as it should have been and due allowance made.
The record discloses that before buying any lands or interest in lands, appellees twice visited the locus in quo and inspected the lands in which they purchased an interest. They saw the well being driven and saw it carried to greater depths. They purchased lands near the well of their voluntary selection. In this situation, representations that the well would produce large quantities of oil and gas at its present depth were not actionable and should have been stricken.
This action was brought against the plaintiffs in error, two corporations with which J. Ray Arnold and Joseph M. Smoot are alleged to have been connected. Allegations with reference to Arnold's wealth in lands or money or with reference to the amount of Smoot's commission were prejudicial and had no place whatever in the declaration. Likewise were representations that no stock or interest in the well or the lands would be offered to the general public. Appellee saw this being done in town after town before he *Page 215
purchased, was on notice of it, and no action is pending against Smoot or Arnold personally.
So far as the record discloses, the parties to this cause were dealing as equals and at arms length. There are actionable allegations in the declaration if proven but they are confused with those which are not actionable and are prejudicial to a fair trial of the cause. The evidence has been examined and is not as clear and convincing as the rule requires as to proof of actionable fraud and misrepresentation.
We have examined the charges given and those requested and refused and find them in both instances to be impregnated with prejudicial error for the reason that the pleadings were cast and trial had been on the wrong theory. To discuss them seriatim
would require a long opinion that would serve no useful purpose. We have attempted to point out the main respect in which the declaration fails and the fact that a speculative and a non speculative sale are controlled by different bona fides which should be borne in mind both in pleading and in proof.
It is accordingly our conclusion that the judgment should be reversed but with directions to the trial court to permit the pleadings to be recast and a new trial had in line with the views expressed in this opinion.
Reversed.
WHITFIELD, BUFORD and CHAPMAN, J.J., concur.
THOMAS, J., concurs specially.
BROWN, J., not participating.
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Case: 18-31184 Document: 00515374081 Page: 1 Date Filed: 04/07/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 7, 2020
No. 18-31184
Lyle W. Cayce
Clerk
TEXAS BRINE COMPANY, L.L.C.,
Plaintiff – Appellant
v.
AMERICAN ARBITRATION ASSOCIATION, INCORPORATED; ANTHONY
M. DILEO; CHARLES R. MINYARD,
Defendants – Appellees
Appeal from the United States District Court
for the Eastern District of Louisiana
Before SOUTHWICK, WILLETT, and OLDHAM, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
One of the parties to an arbitration claimed that two of the arbitrators
hid conflicts of interest. Those claims were the basis on which a Louisiana
state court vacated the arbitral award. The aggrieved party then brought suit
in Louisiana state court seeking substantial damages against one out-of-state
defendant and two in-state defendants. The out-of-state defendant was served
with process and immediately removed the case to federal court before the in-
state defendants were served. The plaintiff moved to remand. The district
court held that this removal prior to service on the nondiverse defendants was
Case: 18-31184 Document: 00515374081 Page: 2 Date Filed: 04/07/2020
No. 18-31184
proper and refused to remand. The district court then entered a judgment on
the pleadings, dismissing the plaintiff’s claims with prejudice. We AFFIRM.
FACTUAL AND PROCEDURAL BACKGROUND
In reviewing an order granting judgment on the pleadings, we accept the
factual allegations in the plaintiff’s complaint as true. Great Plains Tr. Co. v.
Morgan Stanley Dean Witter & Co., 313 F.3d 305, 312–13 (5th Cir. 2002). What
follows are therefore from the complaint.
In 1975, plaintiff Texas Brine Company, L.L.C., contracted with Vulcan
Materials Company to supply brine. Among agreed-on amendments to the
contract in 2000 was the addition of an arbitration clause. The clause provided
that “[a]ny dispute, controversy or claim arising out of or relating to” the
contract or its breach would be resolved by arbitration. The clause further
provided that any arbitration would be conducted under the rules of the
American Arbitration Association (“AAA”) and would be governed by the
Federal Arbitration Act. In 2005, Vulcan assigned its rights under the contract
to Occidental Chemical Corporation (“Oxy”).
After a dispute arose between Texas Brine and Oxy in 2012, Texas Brine
invoked the arbitration clause. Texas Brine and Oxy chose Anthony DiLeo,
Charles Minyard, and Denise Pilié as arbitrators in 2014. The prospective
arbitrators had to disclose potential conflicts of interest. After selection, the
arbitrators signed an oath that recognized a continuing duty to disclose
potential conflicts.
Early in 2018, Texas Brine learned that DiLeo was representing a
corporation in a dispute in which the opposing counsel was also Texas Brine’s
counsel in its dispute with Oxy. Minyard, too, had become involved as DiLeo’s
attorney in a related legal-malpractice action. DiLeo and Minyard had not
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disclosed these potential conflicts. Texas Brine moved the AAA to remove both
DiLeo and Minyard, but the AAA’s Administrative Review Council summarily
denied the motions. A few weeks later, though, the AAA removed Minyard
from the arbitration panel due to an offensive comment he made to Texas
Brine’s counsel. Texas Brine again urged the removal of DiLeo. The day after
the renewed urging, both DiLeo and Pilié resigned.
Texas Brine filed a motion in Louisiana state court to vacate the panel’s
awards and for reimbursement of fees, including approximately $550,000 in
arbitrator fees and $17,300 in administrative expenses that Texas Brine had
paid the AAA before the panel was disbanded. In June 2018, the court vacated
all the arbitral panel’s rulings on contested issues pursuant to 9 U.S.C.
§ 10(a)(2) and LA. STAT. ANN. § 94210(B). Neither party appealed the vacatur.
The AAA was not a party to the state-court proceeding, and the AAA continued
the process of appointing a replacement panel.
On July 6, 2018, Texas Brine filed the current suit against the AAA,
DiLeo, and Minyard in the Civil District Court of the Parish of Orleans. Texas
Brine requested over $12 million in damages and equitable relief, alleging that
the defendants engaged in intentional and wrongful fraudulent conduct in
connection with the arbitration proceedings. On July 11, before Louisiana
residents DiLeo and Minyard had been served, the AAA removed the case to
the United States District Court for the Eastern District of Louisiana. The
AAA, DiLeo, and Minyard each filed answers and moved to dismiss Texas
Brine’s claims under Rule 12(c) of the Federal Rules of Civil Procedure.
The jargon for removal prior to service on all defendants is “snap
removal.” On August 9, Texas Brine moved to remand, challenging the AAA’s
snap removal and disagreeing with the contention that DiLeo and Minyard
were improperly joined. The district court denied the motion on October 11,
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holding that the plain language of the removal statute did not bar snap
removal. The court did not reach the alternate ground of fraudulent joinder.
On November 2, the district court granted the defendants’ motions to dismiss,
then entered judgment dismissing Texas Brine’s claims with prejudice. Texas
Brine appeals from the denial of remand and from the final judgment.
DISCUSSION
We review orders denying remand de novo, and the party who sought
removal has the burden of proving removal was proper. Manguno v.
Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 722–23 (5th Cir. 2002). Any
necessary statutory interpretation is performed de novo. Cervantez v. Bexar
Cnty. Civil Serv. Comm’n, 99 F.3d 730, 732 (5th Cir. 1996). Finally, dismissals
under Federal Rule of Civil Procedure 12(c) are reviewed de novo. Brittan
Commc’ns Int’l Corp. v. Sw. Bell Tel. Co., 313 F.3d 899, 904 (5th Cir. 2002).
We first consider the denial of the motion to remand and then consider the
judgment on the pleadings.
I. Snap Removal
A defendant may remove a civil case brought in state court to the federal
district court in which the case could have been brought. 28 U.S.C. § 1441(a).
In diversity cases, there is an additional limitation on removal, known as the
forum-defendant rule. The rule provides that
[a] civil action otherwise removable solely on the basis of the
jurisdiction under [28 U.S.C. § 1332(a)] may not be removed if any
of the parties in interest properly joined and served as defendants
is a citizen of the State in which such action is brought.
§ 1441(b)(2). The question in this case is whether the forum-defendant rule
prohibits a non-forum defendant from removing a case when a not-yet-served
defendant is a citizen of the forum state. Although we have not yet had
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opportunity to address the “snap removal” issue, two other circuits have
recently interpreted Section 1441(b)(2) as allowing snap removal. Gibbons v.
Bristol-Myers Squibb Co., 919 F.3d 699 (2d Cir. 2019); Encompass Ins. Co. v.
Stone Mansion Rest. Inc., 902 F.3d 147 (3d Cir. 2018). The Sixth Circuit in a
footnote has also interpreted Section 1441(b)(2) to allow snap removal. McCall
v. Scott, 239 F.3d 808, 813 n.2 (6th Cir. 2001).
We begin by recognizing that the forum-defendant rule is a procedural
rule and not a jurisdictional one. In re 1994 Exxon Chem. Fire, 558 F.3d 378,
392–93 (5th Cir. 2009). Here, the district court had subject-matter jurisdiction
because each defendant was diverse from the plaintiff. Id. at 393–94. The
plaintiff is a Texas limited liability company. The defendants are a New York
corporation (the AAA) and two individual citizens of Louisiana (DiLeo and
Minyard). Thus, there is no jurisdictional defect under 28 U.S.C. § 1332(a).
“[W]hen the plain language of a statute is unambiguous and does not
lead to an absurd result, our inquiry begins and ends with the plain meaning
of that language.” Dunn-McCampbell Royalty Interest, Inc. v. Nat’l Park Serv.,
630 F.3d 431, 438 (5th Cir. 2011) (quotation marks omitted). We look for both
plain meaning and absurdity. By Section 1441(b)(2)’s terms, this case would
not have been removable had the forum defendants been “properly joined and
served” at the time of removal. Minyard and DiLeo had not been served,
though. When the AAA filed its notice of removal, the case was “otherwise
removable” — as required by Section 1441(b) — because the district court has
original jurisdiction of a case initially filed in Louisiana state court in which
the parties are diverse. § 1441(a); § 1332(a). The forum-defendant rule’s
procedural barrier to removal was irrelevant because the only defendant
“properly joined and served,” the AAA, was not a citizen of Louisiana, the
forum state. See § 1441(b)(2). We agree with a comment made by the Second
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Circuit: “By its text, then, Section 1441(b)(2) is inapplicable until a home-state
defendant has been served in accordance with state law; until then, a state
court lawsuit is removable under Section 1441(a) so long as a federal district
court can assume jurisdiction over the action.” Gibbons, 919 F.3d at 705.
Texas Brine accepts that the statute’s plain language allows snap
removal. It argues, though, that such a result is absurd and defeats Congress’s
intent. See Schaeffler v. United States, 889 F.3d 238, 242 (5th Cir. 2018).
Texas Brine asserts that Congress added the “properly joined and served”
language to Section 1441(b)(2) to prevent plaintiffs from naming forum
defendants merely for the purpose of destroying diversity. That purpose is not
served here because Texas Brine intended to pursue its claims against the
forum defendants. The AAA counters that there is no meaningful legislative
history of the “properly joined and served” language, even if we were inclined
to consider such history. Further, Congress did not revise that language when
it amended Section 1441(b)(2) in 2011 even after some snap removals had
occurred.
In statutory interpretation, an absurdity is not mere oddity. The
absurdity bar is high, as it should be. The result must be preposterous, one
that “no reasonable person could intend.” ANTONIN SCALIA & BRYAN A.
GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 237 (2012); see
also United States v. Dison, 573 F.3d 204, 210 n.28 (5th Cir. 2009). In our view
of reasonableness, snap removal is at least rational. Even if we believed that
there was a “drafter’s failure to appreciate the effect of certain provisions,”
such a flaw by itself does not constitute an absurdity. SCALIA & GARNER, supra,
at 238. We are not the final editors of statutes, modifying language when we
perceive some oversight. The Second and Third Circuits rejected the same
absurdity argument in upholding snap removal. The Second Circuit believed
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there was more than one sensible reason for the language “properly joined and
served”:
Congress may well have adopted the “properly joined and served”
requirement in an attempt to both limit gamesmanship and
provide a bright-line rule keyed on service, which is clearly more
easily administered than a fact-specific inquiry into a plaintiff’s
intent or opportunity to actually serve a home-state defendant.
Gibbons, 919 F.3d at 706. In other words, a reasonable person could intend
the results of the plain language. The Third Circuit also found that the result
was not absurd because the interpretation gives meaning to each word and
abides by the plain language. Encompass, 902 F.3d at 153. Of some
importance, the removing party is not a forum defendant. Diversity
jurisdiction and removal exist to protect out-of-state defendants from in-state
prejudices. See J.A. Olson Co. v. City of Winona, 818 F.2d 401, 404 (5th Cir.
1987). The plain-language reading of the forum-defendant rule as applied in
this case does not justify a court’s attempt to revise the statute.
Texas Brine also argues that the removal here is an example of an abuse
of the statute. We have stated in dicta that “exceptional circumstances” might,
in some cases where a plaintiff acts in bad faith, warrant departing from a
strict application of the rule that removal may not happen more than 30 days
after the first defendant is served. E.g., Brown v. Demco, Inc., 792 F.2d 478,
482 (5th Cir. 1986). In such cases, we considered whether a district court’s
equitable powers extended to permit late filing for removal. E.g., Doe v.
Kerwood, 969 F.2d 165, 169 (5th Cir. 1992); Ortiz v. Young, 431 F. App’x 306,
307 (5th Cir. 2011). Those cases may support tolling removal-filing deadlines
in exceptional cases, but they do not support rewriting the statute here. We
will not insert a new exception into Section 1441(b)(2), such as requiring a
reasonable opportunity to serve a forum defendant.
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It is true, as Texas Brine points out, that we strictly construe the removal
statute and favor remand. See Gasch v. Hartford Accident & Indem. Co., 491
F.3d 278, 281–82 (5th Cir. 2007). Here, though, we do not have “any doubt
about the propriety of removal” because, as discussed, the text is unambiguous.
Id. So the rule in Gasch does not apply. Id. A non-forum defendant may
remove an otherwise removable case even when a named defendant who has
yet to be “properly joined and served” is a citizen of the forum state.
II. Exclusive Remedy
Having held that the case properly was retained in federal court, we now
review the district court’s decision to grant judgment for the defendants on the
pleadings. The district court held that the defendants enjoyed arbitral
immunity and that the Federal Arbitration Act (“FAA”) provided the exclusive
remedy for complaints of bias or a corrupt arbitrator’s conduct. Because these
are independent reasons for dismissal, our agreement with either obviates the
need to consider the other. Here, we rule on exclusive-remedy grounds and do
not opine on the legitimacy of arbitral immunity.
Judicial review in the arbitration context is limited. The Supreme Court
has held that the statutory bases for vacating an arbitrator’s award are the
only grounds on which a court may vacate an award. Hall St. Assocs. L.L.C. v.
Mattel, Inc., 552 U.S. 576, 586 (2008) (citing 9 U.S.C. §§ 10 & 11). Relying on
Hall Street, this court rejected one effort to go beyond the statutory language
by holding that “manifest disregard of the law” is not an independent ground
for challenging an arbitral award. Citigroup Glob. Mkts., Inc. v. Bacon, 562
F.3d 349, 358 (5th Cir. 2009). Further, purportedly independent claims are
not a basis for a challenge if they are disguised collateral attacks on the
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arbitration award. Gulf Petro Trading Co. v. Nigerian Nat’l Petroleum Corp.,
512 F.3d 742, 747, 750 (5th Cir. 2008).
The defendants argue that Texas Brine’s suit is an impermissible
collateral attack on the arbitration award that seeks to bypass the
congressionally created remedy for challenging an arbitration through a
vacatur or modification proceeding. The defendants rely in part on two Sixth
Circuit cases in which the court found an impermissible collateral attack on
the arbitration award. Decker v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,
205 F.3d 906 (6th Cir. 2000); Corey v. New York Stock Exch., 691 F.2d 1205
(6th Cir. 1982). Texas Brine argues that those cases are distinguishable, and
to the extent that the reasoning of those decisions is applicable, we should
reject the reasoning as flawed. We have previously applied those very cases,
though, to determine whether a party was attempting an impermissible
collateral attack on an arbitration award. Gulf Petro, 512 F.3d at 750. The
question then is whether Texas Brine’s claims constitute impermissible
collateral attacks.
In the Sixth Circuit’s Corey decision, an arbitration panel dismissed a
plaintiff’s claim and assessed costs against him; the plaintiff did not appeal or
move to vacate the judgment within the statutory period. 691 F.2d at 1208.
The plaintiff sued the arbitrators and the sponsoring organization, alleging
that the latter deprived him of a fair hearing by “select[ing] members of the
arbitration panel in violation of the [sponsoring organization’s] rules” and by
rescheduling hearings over the plaintiff’s objections. Id. The plaintiff also
alleged that the arbitrators had prejudged the merit of his claims and
inappropriately disallowed certain evidence. Id. The plaintiff asked for
punitive damages for the mental anguish and physical problems he alleged
occurred because of these acts. Id.
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The Sixth Circuit held that the FAA was the exclusive remedy for the
alleged wrongdoing and that the plaintiff’s claims impermissibly collaterally
attacked the arbitration award. Id. at 1211–12. The wrongdoing alleged in
the complaint was “squarely within the scope of section 10 of the Arbitration
Act.” Id. at 1212. The court noted that the complaint “challenge[d] the very
wrongs affecting the award for which review is provided under section 10 of
the Arbitration Act. The mere presence of the [sponsoring organization] or the
arbitrators or the prayer for damages does not change the substance of [the
plaintiff’s] claim.” Id. at 1213. As a result, the court affirmed the district
court’s summary judgment in favor of the defendant. Id.
The Sixth Circuit expounded on its approach to analyzing collateral
attacks in Decker. There, the plaintiff brought tortious interference and
breach-of-contract claims. Decker, 205 F.3d at 909–10. The court held that
these were impermissible collateral attacks because the plaintiff’s harm
resulted from the prejudice to the plaintiff in the arbitration proceedings and
the impact on the arbitration award. Id. at 910.
We have used the Sixth Circuit decisions in our analysis of a collateral
attacks on an arbitration award. In Gulf Petro, the plaintiff asserted claims
under the Racketeer Influenced and Corrupt Organizations Act, the Texas
Deceptive Trade Practices Act, and Texas common-law fraud and the tort of
civil conspiracy; it sought vacatur of the arbitration award under the FAA. 512
F.3d at 745. The plaintiff sought damages for “(1) costs and expenses of the
arbitration and subsequent legal challenges; (2) lost expenses and profits that
would have been awarded had the panel rendered a fair award;
(3) reputational injury suffered as a consequence of not prevailing in the
arbitration; and (4) lost business opportunities suffered as a consequence of not
prevailing in the arbitration.” Id. at 749.
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We held that to categorize a claim against an arbitration decision, we
look to “the relationship between the alleged wrongdoing, purported harm, and
arbitration award.” Id. The test for a collateral attack is not merely whether
the claims “attempt to relitigate the facts and defenses that were raised in the
prior arbitration.” Id. at 749–50. Such a limitation would not align with Corey
and Decker, “where the plaintiffs were found to be engaged in collateral attacks
even though they did not attempt to relitigate the facts and defenses of the
underlying disputes that had prompted arbitration, but instead were alleging
that wrongdoing had tainted the arbitration proceedings and caused unfair
awards.” Id. at 750. We found that the plaintiff’s claims in Gulf Petro
constituted a collateral attack because the plaintiff was seeking to remedy
wrongdoing that Section 10 was meant to address. Id.
We now apply this analysis to Texas Brine’s claims. We start with the
alleged wrongdoing. Alleging wrongdoing that would justify vacatur is a sign
of a collateral attack. Id. at 749. In Gulf Petro, the plaintiff alleged two kinds
of wrongdoing: first, that the defendant bribed the arbitrators for a favorable
outcome and, second, that the arbitrators failed to disclose their business
dealings and ex parte communications with the defendant. Id. Texas Brine
alleges similar wrongdoing involving the arbitrators’ failure to disclose
potential conflicts of interest. Further, the alleged wrongdoing here resembles
the wrongdoing that led the Louisiana court to vacate the underlying
arbitration awards, namely, the arbitrators’ conflicts of interest. This
wrongdoing is “squarely within the scope of section 10” of the FAA, Corey, 691
F.2d at 1212, which allows for vacatur based on “evident partiality or
corruption in the arbitrators,” 9 U.S.C. § 10(a)(2).
Next, we look to the purported harm. See Gulf Petro, 512 F.3d at 749.
In its petition for damages, Texas Brine alleges harm that we may summarize
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into a few categories: (1) the strategic disadvantage in the arbitration process
due to arbitrator bias; (2) a “tainted” arbitration; and (3) wasted money spent
on the arbitration. For example, Texas Brine alleges that the nondisclosure of
conflicts of interest “deprived Texas Brine of the opportunity to make an
informed decision as to [DiLeo’s] continued service as an arbitrator.” Texas
Brine also contends that the arbitrators had an “unjust advantage” in the
proceedings because of the nondisclosure. As in Decker and Corey, the harm to
Texas Brine from the strategic disadvantage and the “tainted” arbitration
ultimately manifested in its effect on the arbitration awards. Decker, 205 F.3d
at 910. This means that it is the kind of harm appropriately remedied through
Section 10 of the FAA. Id. Further, in Gulf Petro, the fact that the plaintiff
sought costs and expenses did not affect our finding that the plaintiff was
collaterally attacking the arbitration award. 512 F.3d at 749–50. The
purported harm in this case is of the kind that Gulf Petro, Corey, and Decker
addressed.
Last, we look to the requested relief and its relationship to the alleged
wrongdoing and purported harm. See Gulf Petro, 512 F.3d at 749. Texas Brine
complains that “[v]acatur is an incomplete remedy.” Instead, the argument
goes, Texas Brine should be reimbursed for all the fees and costs it paid during
the arbitration and state-court litigation. According to Texas Brine, it is owed
over $12 million, including over $560,000 from fees paid directly to the AAA
and the arbitrators. In its prayer for relief, Texas Brine requested that the
court grant various forms of relief and that the court find “such relief is
delictual [i.e., based on tort], or alternatively, contractual, in nature.” Texas
Brine also requested that the defendants “fully disgorge [themselves] of all
amounts paid during the arbitration proceedings . . . .” As previously
mentioned, Gulf Petro categorized a plaintiff’s request for reimbursement of
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the costs and fees that it paid in the arbitration as a collateral attack. 512 F.3d
at 749.
Texas Brine acknowledges the exclusive-remedy rule from Hall Street,
but it attempts to distinguish its own claims from those in Corey. Texas Brine
emphasizes that it successfully obtained vacatur under Section 10, while the
plaintiff in Corey did not. Corey’s holding, though, and the analysis we adopted
in Gulf Petro, did not turn on whether the plaintiff sought vacatur of the
arbitration award. Nothing in our caselaw indicates that the exclusive-remedy
rule is merely an exhaustion rule, a prerequisite to filing additional claims in
tort, contract, or equity that in essence attack the underlying arbitration.
Here, the state court vacated the arbitral awards under Section 10 due to the
same wrongdoing that Texas Brine alleges in its new lawsuit.
Congress identified some potential problems that may arise in
arbitration in Section 10 of the FAA and provided a limited remedy. The relief,
purported harm, and alleged wrongdoing here show that Texas Brine’s claims,
at heart, are in fact an unauthorized collateral attack on the arbitration. The
district court was correct to dismiss the challenge.
III. Texas Brine’s Motion to Supplement the Record
Texas Brine seeks to supplement the record on appeal with recently
produced documents from the state-court litigation. The evidence relates to
the AAA’s administration of the underlying arbitration. Even if admitted, the
evidence would not change that Section 10 of the FAA was the appropriate
means of challenging the arbitrators’ acts, and collateral attacks are not
allowed. We DENY the motion to supplement.
AFFIRMED.
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Case: 19-10403 Document: 00515374270 Page: 1 Date Filed: 04/07/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-10403 April 7, 2020
Summary Calendar
Lyle W. Cayce
Clerk
SERGIO AGUILAR,
Plaintiff–Appellant,
v.
SERVICE LLOYDS INSURANCE,
Defendant–Appellee.
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 3:18-CV-2415
Before HIGGINBOTHAM, SOUTHWICK, and WILLETT, Circuit Judges.
PER CURIAM: *
Sergio Aguilar moves for authorization to proceed in forma pauperis
(IFP) in his appeals of the district court’s judgment dismissing his complaint
for lack of subject-matter jurisdiction. See FED. R. CIV. P. 12(h)(3). Aguilar filed
his complaint accusing Service Lloyds Insurance Company (Service Lloyds) of
fraud and identity theft in connection with his workers’ compensation claim.
Aguilar claimed that the medical reports and workers’ compensation benefits,
* Pursuant to 5TH CIR. R. 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
CIR. R. 47.5.4.
Case: 19-10403 Document: 00515374270 Page: 2 Date Filed: 04/07/2020
No. 19-10403
which compensated him for only one percent restriction, were fraudulent
because they referenced false social security and claim numbers. Aguilar
requested that Service Lloyds be required to pay him his correct benefits under
his correct social security and claim numbers.
In denying leave to appeal IFP, a district court may “incorporate by
reference its decision dismissing the prisoner’s complaint on the merits with or
without supplementation,” which is the procedure used in this case. See Baugh
v. Taylor, 117 F.3d 197, 202 n.21 (5th Cir. 1997). By moving to proceed IFP,
Aguilar is challenging the district court’s certification that his appeal is not
taken in good faith. See id. at 202. Our inquiry into whether the appeal is taken
in good faith “is limited to whether the appeal involves legal points arguable
on their merits (and therefore not frivolous).” Howard v. King, 707 F.2d 215,
220 (5th Cir. 1983) (internal quotation marks and citations omitted). By failing
to address the district court’s reasons for dismissing his complaint for lack of
subject-matter jurisdiction or providing any other reason why the district
court’s certification is erroneous, Aguilar has abandoned any challenge he
might have raised regarding the district court’s decision. See Yohey v. Collins,
985 F.2d 222, 225 (5th Cir. 1993); Brinkmann v. Dallas County Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Aguilar’s appeal is without arguable merit and is thus frivolous. See
Howard, 707 F.2d at 219-20. His IFP motion is therefore DENIED, and his
appeals are DISMISSED as frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH
CIR. R. 42.2.
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Case: 19-30714 Document: 00515374103 Page: 1 Date Filed: 04/07/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-30714 April 7, 2020
Summary Calendar
Lyle W. Cayce
Clerk
LUCIANA F. LAWSON,
Plaintiff - Appellant
v.
AT&T MOBILITY SERVICES, L.L.C., incorrectly identified as AT&T
Mobility, L.L.C., on behalf of AT&T,
Defendant - Appellee
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:16-CV-1719
Before KING, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM:*
Luciana Lawson, an African American woman, was terminated by AT&T
Mobility Services LLC (AT&T) after allegedly stealing cash from the store
where she worked. Lawson subsequently filed suit under Title VII, asserting
that AT&T’s rationale for terminating her was pretextual because similarly
* Pursuant to 5TH CIR. R. 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
CIR. R. 47.5.4.
Case: 19-30714 Document: 00515374103 Page: 2 Date Filed: 04/07/2020
No. 19-30714
situated employees were not terminated following other alleged thefts. Finding
no reversible error, we affirm the judgment below.
I.
Lawson handled cash transactions at the AT&T store in New Iberia,
Louisiana. On September 22, 2015, AT&T discovered a cash shortage and
investigated. Surveillance video showed Lawson opening the cash drawer,
removing a SIM card from the drawer, and not placing cash in the drawer,
despite processing a cash transaction. 1 According to AT&T, Lawson offered no
explanation for why she did not place cash in the drawer, but she denied the
allegation of theft. In light of the surveillance video and Lawson’s response,
AT&T terminated Lawson.
AT&T moved for summary judgment in the district court, which was
granted. The court determined that AT&T’s rationale for Lawson’s termination
was not pretextual and that the comparators she identified were not similarly
situated. This appeal followed.
II.
“We review a district court’s grant or denial of summary judgment de
novo, applying the same standard as the district court.” Thomas v. Johnson,
788 F.3d 177, 179 (5th Cir. 2015) (quoting Robinson v. Orient Marine Co., 505
F.3d 364, 365 (5th Cir. 2007)). “Summary judgment is appropriate if ‘the
pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a
matter of law.’” Robinson, 505 F.3d at 366.
1 Lawson notes that the video did not show her handling money.
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A.
Title VII is designed “to assure equality of employment opportunities and
to eliminate those discriminatory practices and devices which have fostered
racially stratified job environments to the disadvantage of minority citizens.”
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800 (1973). A plaintiff who
lacks direct evidence of employment discrimination must “provid[e]
circumstantial evidence sufficient to raise an inference of discrimination,” in
which case we “apply the McDonnell Douglas burden-shifting framework.”
Thomas, 788 F.3d at 179.
“Under this framework, the plaintiff must make a prima facie showing
of discrimination.” Id. If the plaintiff does so, the “employer must articulate a
legitimate, non-discriminatory reason for the adverse employment action.” Id.
(internal quotation marks omitted). This “burden is only one of production, not
persuasion, and involves no credibility assessment.” McCoy v. City of
Shreveport, 492 F.3d 551, 557 (5th Cir. 2007). If the employer meets this
burden, the plaintiff must then “show the articulated reason is pretextual.”
Thomas, 788 F.3d at 179. “A plaintiff may establish pretext either through
evidence of disparate treatment or by showing that the employer’s proffered
explanation is false or unworthy of credence.” Laxton v. Gap Inc., 333 F.3d 572,
578 (5th Cir. 2003) (internal quotation marks and citation omitted). In
addition, the employee “must rebut each discrete reason proffered by the
employer.” Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 233 (5th Cir.
2015).
B.
Even if Lawson could establish a prima facie case of Title VII
discrimination, she fails to establish that AT&T’s rationale for her termination
(i.e., theft) was a pretext for racial discrimination. Theft is a legitimate
rationale for termination, see, e.g., Jones v. Overnite Transp. Co., 212 F. App’x
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No. 19-30714
268, 274 (5th Cir. 2006), and AT&T offered nondiscriminatory reasons for
concluding that Lawson committed the theft in question. The company
investigated, located a store receipt that indicated that cash was missing,
reviewed video evidence tying Lawson to the event in question, and gave
Lawson an opportunity to explain the event in question. Accordingly, AT&T’s
proffered explanation is not false or unworthy of credence, even if AT&T might
be mistaken. See Amezquita v. Beneficial Tex., Inc., 264 F. App’x 379, 386 (5th
Cir. 2008) (“[E]ven an employer’s incorrect belief in the underlying facts—or
an improper decision based on those facts—can constitute a legitimate, non-
discriminatory reason for termination.” (citing Bryant v. Compass Grp. USA
Inc., 413 F.3d 471, 478 (5th Cir. 2005))); see also Bryant, 413 F.3d at 478
(“Management does not have to make proper decisions, only non-
discriminatory ones.”).
Moreover, Lawson offers no disparate-treatment evidence showing that
her termination was motivated by a discriminatory intent. See Bryant, 413
F.3d at 478 (“[E]vidence that the employer’s investigation merely came to an
incorrect conclusion does not establish a racial motivation behind an adverse
employment decision.”); see also Mayberry v. Vought Aircraft Co., 55 F.3d 1086,
1091 (5th Cir. 1995) (same). Although Lawson notes that two Caucasian
employees accused of theft were not terminated, those occurrences are readily
distinguishable. Here, Lawson was the only employee involved in the
transaction, and records tied her to the transaction. By contrast, the other
occurrences featured no evidence (and certainly no video evidence) tying any
particular employee to the reported theft; instead, either of two individuals
could have been responsible. Accordingly, Lawson has failed to demonstrate
that AT&T’s rationale for her termination was a pretext for discrimination.
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III.
For the foregoing reasons, we AFFIRM the district court’s dismissal of
Lawson’s Title VII claims.
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Case: 19-30767 Document: 00515374099 Page: 1 Date Filed: 04/07/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 19-30767
Fifth Circuit
FILED
April 7, 2020
JOSEPH LARRY MOREAU, JR., Lyle W. Cayce
Clerk
Plaintiff - Appellant
v.
ST. LANDRY PARISH FIRE DISTRICT NO. 3; WILFRED KINNERSON,
individually ; in his official capacity; DONALD ROBINSON, individually ; in
his official capacity; GREG DOUCET, individually ; in his official capacity;
TERRI COURVELLE, individually ; in his official capacity; FRANK
GUIDROZ, individually ; in his official capacity; PAMELA JACKSON,
individually ; in her official capacity; BOARD OF COMMISSIONERS ST.
LANDRY PARISH FIRE DISTRICT NO. 3; MATTHEW RABALAIS,
Individually and in his Official Capacity as Chief of St. Landry Fire
Protection District No. 3,
Defendants – Appellees
Appeal from the United States District Court
for the Western District of Louisiana
Before DAVIS, JONES, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
Larry Moreau, Jr., a former fire captain, sued St. Landry Fire Protection
District No. 3 (“District 3”) and seven individual members of its Board of
* Pursuant to 5TH CIR. R. 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
CIR. R. 47.5.4.
Case: 19-30767 Document: 00515374099 Page: 2 Date Filed: 04/07/2020
No. 19-30767
Commissioners (the “Board”) under 42 U.S.C. § 1983, alleging he was fired in
retaliation for exercising his First Amendment rights and without due process.
The district court granted summary judgment in favor of Defendants. We
AFFIRM.
I. BACKGROUND
In May 2017, Moreau was accused of refusing to participate in a fire
training exercise. At a pre-disciplinary hearing before the Board, Moreau
explained that he did not participate because of an on-the-job injury that he
failed to report. The Board voted to issue Moreau a formal letter of reprimand,
but Chairman Wilfred Kinnerson would have gone further—he thought
Moreau should have been fired over the incident. This created a “personal
problem” between Moreau and Chairman Kinnerson.
Months later, the actions of an unrelated local school board caught media
attention. When a teacher questioned the members of the Vermillion Parish
School Board about a potential raise for the superintendent, the school board
had police remove her from the meeting, and the teacher was handcuffed and
taken to jail. One of Moreau’s Facebook friends posted a local news story about
the school board incident, and Moreau posted the following comment:
all of this going on with this poor teacher being treated so unfairly
makes one thing perfectly clear… These “boards” everywhere,
ruled by good old boy politics need to be dissolved ASAP..!! We have
the same exact problem at our fire department… A board of
clueless idiots making the decisions that affect many including the
very employees who actually do the job.. It’s a joke.. I hope this
teacher makes them pay…. and pay big time.!!
Moreau deleted the post after Candice Elkins, secretary to District 3’s
Board, responded to it. Then he initiated the following private message
exchange with Elkins:
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No. 19-30767
[MOREAU:] Not trying to be ugly here so don’t get all wound up…
But if you’re looking at my page and trying to Police what I say
because you happen to be on our Board than [sic] I will have to
delete you. I didn’t call all of you idiots. You know exactly the ones
I’m talking about. I’m not stupid, I spent the better part of last
summer having to literally fight for my job after working my ass
off there for 27 damn years.. Also having to actually sit at a board
meeting and explain myself after providing 2 different doctors [sic]
excuse as to why I couldn’t work that day..!! Fucking
embarrassing, humiliating and wrong.. All because of one IDIOT
on the board. !! I did not deserve that!! Remember it was y’all who
hired that nut four years ago… it was y’all who sat back and did
nothing while he practically ruined our department. It was y’all
who gave him a blank check, allowed him to treat the men like shit
(especially the older ones like myself) and then finally at the end
after we were broke did y’all wake up. All this stuff going on with
this teacher in Abbeville shows that this good old boy political crap
is for the birds and I can’t wait to get away from it… Going in the
drop October 31st of this year… I will never work a political job
again that’s for certain..
[ELKINS:] Dude… didn’t look up your page to police anything.
Scrolling through fb this morning and there it was for any of your
friends to see. Just to clarify, I’m not on the board so I didn’t take
offense. I work for the board, I happen to love Fire District 3, and
will work with the board and the entire staff of firefighters to make
it great again! That’s my goal.
[MOREAU:] Well, I’ve seen an awful lot of dirty s[t]uff go on over
there in 27 years..!! Just tired of it. Ready to go do something else.
And for the record I do think y’all are on the right track... If they
don’t make Rabalais chief, I might just outright quit.. He’s
definitely without a doubt the right man for the job… But this
board has a history in the past of not always doing the “right”
things…
[ELKINS:] The Board, and all of us affiliated with FD3, have
worked tirelessly in the last year to turn things around. Some of
us prefer to look towards the future rather than dwell on the past.
It’s a different board now and they are trying hard to do the right
thing. You misspoke when you referred to them as clueless idiots,
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No. 19-30767
but that’s just my opinion. You probably should not speak
negatively, nor post negatively on social media, about the agency
which has provided your livelihood for the past 27 years, no matter
how tired you are of it. Just offering my 2 cents, for what it’s worth.
Have a good weekend!
[MOREAU:] I’m sorry but Kennerson [sic] is a clueless idiot who
should not even be allowed near a board of any kind that makes
decisions.. Don’t think I misspoke one bit. And it’s not so easy to
just forget the past when you’ve just given up 27 years of your life
seeing and living it. It has been a prison at times not a livelihood…
and my sentence is almost up. At this point I’m just hoping my last
few years are a little more pleasant than the first 27 have been..
[MOREAU:] I really don’t think y’all realize just how bad the moral
[sic] of the men is over there..!!! It’s literally completely in the
toilet.!! Hopefully that’ll get better as well..
Elkins complained about Moreau’s comments, and Moreau was given
written notice that he would be investigated for posting “disparaging remarks”
about District 3. Moreau was questioned by fire district Chief Rabalais, and
was later given notice of a pre-disciplinary hearing. 1 At the hearing, Moreau
defended his Facebook post on the grounds that he was referring to “older
boards, not the current board” when he called them “clueless idiots.” The Board
unanimously voted to fire Moreau.
1 The notice informed Moreau that his post violated District 3’s social media policy,
and that he may face disciplinary action for the following violations listed in the state civil
service law, La. Rev. Stat. § 33:2500:
(3) The commission or omission of any act to the prejudice of the departmental service or
contrary to the public interest or policy.
(5) Conduct of a discourteous or wantonly offensive nature toward the public, any municipal
officer or employee; and, any dishonest, disgraceful, or immoral conduct.
(14) The willful violation of any provision of this Part or of any rule, regulation, or order
hereunder.
Defendants note that the notice should have actually cited La. Rev. Stat. § 33:2560—the
section of the civil service law that applies to small municipalities and fire districts.
4
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No. 19-30767
Moreau sued District 3, alleging he was fired in retaliation for exercising
his First Amendment rights. He later added seven individual members of the
Board, and amended his complaint to assert procedural due process claims
under federal and state law. The district court granted Defendants’ motion for
summary judgment, holding that (1) Moreau’s speech was not a “public
concern” and was not entitled to First Amendment protection; and (2) his
procedural due process claims are time-barred. Moreau timely appealed.
II. DISCUSSION
We review the district court’s grant of summary judgment de novo. 2
Summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” 3
1. First Amendment Claim
To establish a First Amendment retaliation claim, Moreau must show
that (1) he suffered an adverse employment action; (2) he spoke as a citizen on
a matter of public concern; (3) his interest in speaking outweighed District 3’s
interest in promoting efficiency; and (4) his speech motivated District 3’s
adverse action against him. 4 If Moreau did not speak on a matter of public
concern, the inquiry ends. 5
We determine whether a public employee’s speech relates to a matter of
public concern by weighing the “content, form, and context of a given
statement, as revealed by the whole record.” 6 In “mixed” cases—those
2 Uptown Grill, L.L.C. v. Camellia Grill Holdings, Inc., 920 F.3d 243, 247 (5th Cir.
2019).
FED. R. CIV. P. 56(a).
3
Gibson v. Kilpatrick, 838 F.3d 476, 481 (5th Cir. 2016). If the speech does not address
4
a matter of public concern, a court need not proceed to the third and fourth steps.
5 Garcetti v. Ceballos, 547 U.S. 410, 418 (2006).
6 Connick v. Myers, 461 U.S. 138, 147–148 (1983).
5
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No. 19-30767
involving both private and public concerns—we determine whether the private
concerns predominate. 7 Weighing these factors, we conclude that Moreau’s
Facebook post was predominately of private concern.
“Speech involves matters of public concern when it can be fairly
considered as relating to any matter of political, social, or other concern to the
community, or when it is a subject of legitimate news interest; that is, a subject
of general interest and of value and concern to the public.” 8 Speech does not
relate to a public concern when it involves “solely personal matters or strictly
a discussion of management policies that is only interesting to the public by
virtue of a manager’s status as an arm of government.” 9 If, however, “releasing
the speech to the public would inform the populace of more than the fact of an
employee’s employment grievance,” 10 it might be public.
First, although Moreau’s post addressed some matters of public
concern—the Vermillion Parish School Board incident had garnered local
media attention—his statement that his own employer’s Board is made up of
“clueless idiots” is more “akin to an internal grievance,” 11 and “convey[s] no
information at all other than the fact that a single employee is upset with the
status quo.” 12
Second, the form of his speech (a public social media post) weighs in favor
of a finding of public concern—it was accessible to the public outside of District
3’s chain of command.
Third, however, the context of his speech weighs against a finding that
Moreau spoke predominately on a matter of public concern. Speech “made
7 Gibson, 838 F.3d at 485.
8 Lane v. Franks, 573 U.S. 228, 241 (2014) (citation and quotation marks omitted).
9 Branton v. City of Dallas, 272 F.3d 730, 740 (5th Cir. 2001).
10 Id. (quotation marks omitted).
11 Graziosi v. City of Greenville, 775 F.3d 731, 738 (5th Cir. 2015).
12 Connick, 461 U.S. at 148.
6
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No. 19-30767
solely in furtherance of a personal employer-employee dispute” 13 isn’t public—
and generally, “an employee speaks in furtherance of his personal employer-
employee dispute when he discusses personnel matters directly impacting his
job or criticizes other employees or supervisors’ job performance.” 14 Moreau
was admittedly angry with the Board for accusing him of refusing to
participate in a fire training exercise, and for the way they treated him during
the investigation and hearing. He made the Facebook post in the context of his
private frustration with the Board’s management and decision-making, and a
“personal problem” he had with its Chairman.
Although Moreau began his Facebook post by commenting on a
publicized school board incident, his speech “devolved” into his personal
criticism of District 3’s Board. 15 His statement was “primarily motivated by
and primarily addressed [his] displeasure” 16 with District 3’s Board and the
way it operates. On balance, Moreau’s speech was predominately of private
concern, and the district court did not err in granting summary judgment.
2. Procedural Due Process Claims
Moreau brought federal and state due process claims, alleging he was
fired “for various, ill-defined reasons in addition to his Facebook post.” The
district court concluded that these claims are time-barred. Even assuming
these claims are timely, they fail on the merits.
13 Salge v. Edna Indep. Sch. Dist., 411 F.3d 178, 187 (5th Cir. 2005).
14 Id. at 187–88.
15 See, e.g., Graziosi, 775 F.3d at 738 (Police sergeant’s Facebook post criticizing the
department’s failure to send a representative to a fellow officer’s funeral was not public in
nature because it “devolved into a rant” attacking the chief’s leadership style and intra-
department decision-making.).
16 Id. at 739 (“[W]e cannot allow the mere insertion of a scintilla of speech regarding
a matter of public concern, to plant the seed of a constitutional case.”) (internal citations and
quotations omitted).
7
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No. 19-30767
A public employee “is entitled to oral or written notice of the charges
against him, an explanation of the employer’s evidence, and an opportunity to
present his side of the story.” 17 “To require more than this prior to termination
would intrude to an unwarranted extent on the government’s interest in
quickly removing an unsatisfactory employee.” 18 Here, Moreau received notice
of his investigation and the pre-disciplinary hearing. He was informed of the
possible bases for discipline—his Facebook post and violations of the civil
service law—and was given a hearing before the Board, where he was able to
respond and present his side of the story. Finally, he had the opportunity to
appeal the Board’s decision to the Civil Service Board.
Moreau argues that the Louisiana Firefighters’ Bill of Rights, 19 which
imposes additional procedural requirements on fire departments attempting
to discipline their employees, can support a federal or state due process claim.
But “the process which is due under the United States Constitution is that
measured by the due process clause, not that called for by state regulations.” 20
The failure to apply certain “procedural protections called for by state law or
regulation does not of itself amount to a denial of due process.” 21 And because
that statute does not create a private right of action for damages, Moreau
cannot bring § 1983 and state law claims for alleged violations of it.
17 Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985).
18 Id.
19 La. Rev. Stat. § 33:2181-2186.
20 Giovanni v. Lynn, 48 F.3d 908, 912 (5th Cir. 1995) (citation omitted); see also
Dearman v. Stone Cty. Sch. Dist., 832 F.3d 577, 584 (5th Cir. 2016) (“The School District may
have violated state law when denying Dearman an official nonrenewal hearing. Given,
however, that Dearman did receive both notice and an opportunity to respond, this state-law
violation does not also amount to a violation of federal due process.”).
21 Id.
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III. CONCLUSION
For these reasons, the district court did not err in granting summary
judgment. The district court’s judgment is AFFIRMED.
9
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https://www.courtlistener.com/api/rest/v3/opinions/4523252/
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Case: 19-10214 Document: 00515374052 Page: 1 Date Filed: 04/07/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-10214 April 7, 2020
Lyle W. Cayce
JOHNNIE MELVIN, Clerk
Plaintiff - Appellant
v.
BARR ROOFING COMPANY,
Defendant - Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:18-CV-50
Before ELROD, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
Johnnie Melvin appeals the district court’s grant of summary judgment
in Barr Roofing Company’s favor on his claims of discrimination, retaliation,
and hostile work environment under Title VII and 42 U.S.C. § 1981. For the
following reasons, we AFFIRM the district court’s grant of summary judgment
on Melvin’s discrimination claim but REVERSE it on the retaliation and
hostile work environment claims.
* Pursuant to 5TH CIR. R. 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
CIR. R. 47.5.4.
Case: 19-10214 Document: 00515374052 Page: 2 Date Filed: 04/07/2020
No. 19-10214
Background
Because this is an appeal of a summary judgment, we are providing the
facts in the light most favorable to the non-movant, recognizing, of course, that
some are disputed. See McFaul v. Valenzuela, 684 F.3d 564, 571 (5th Cir.
2012). Melvin, an African-American man, was a sheet-metal worker for Barr
Roofing on and off from 2001 until 2017. Melvin alleged that, beginning in
2012 or 2013, he became the target of racial slurs at work and that several
white coworkers, including his direct supervisor and his supervisor’s relatives,
called him racial slurs “on a daily or near-daily basis.” In March 2013, he
complained to Bryan Galloway, vice president of Barr Roofing, about the racial
slurs; Melvin was subsequently fired, then rehired.
According to Melvin, in 2016, E.H., a fellow employee related to his
supervisor, offered Melvin marijuana while on the job, and he accepted it.
After another employee reported that Melvin and others were smoking
marijuana on the job, Melvin was asked to take and subsequently failed a drug
test. Melvin alleged that E.H. passed the drug test by swapping his urine
sample with another person’s “clean” sample. Melvin was not fired because of
the failed drug test, and he understood that the failed drug test meant he would
later be retested.
In April 2017, a white employee took Melvin’s work tools and threw them
out of a window while they were riding together in a car after completing work.
The white employee indicated he was a white supremacist and threatened to
throw Melvin off a roof when they worked together again. On May 1, Melvin
notified Galloway about the incident. Galloway told Melvin that he would
investigate the complaint (though Melvin believes that Galloway might not
have followed through on the investigation). Arek Hawkins, Melvin’s
supervisor, approached Melvin the following day and said that he did not like
“snitches.”
2
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No. 19-10214
On May 4, Galloway informed Melvin that Hawkins had written him up
for poor performance and “cussing,” and accordingly told Melvin to go home for
the day rather than continue working. According to Melvin, other employees
were not disciplined for similar work performance or cussing, and Melvin “felt
that [he] was being punished for reporting [his] complaints.” Galloway called
Melvin later that afternoon and asked Melvin why he had not shown up for a
drug test. Melvin was “confused” because he was “unaware that [Galloway]
wanted [him] to take a drug test”; Galloway told Melvin to take a drug test
that day. Melvin told Galloway that he could not do so because he lacked access
to a vehicle, and Melvin did not take the drug test.
When Melvin returned to work, Hawkins—who supervised Melvin’s
work “in the field”—reiterated that he did not like snitches and said that
Melvin would no longer perform work for Hawkins. On May 9, Galloway fired
Melvin for failure to submit to a drug test.
On April 10, 2018, Melvin filed his complaint, alleging violations of Title
VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. Melvin stated that he
faced “a pattern and practice of harassment and humiliation” at work and that
the motive for his termination “was racial discrimination and retaliation.”
Barr Roofing moved for summary judgment on Melvin’s discrimination
and retaliation claims. In his response brief, Melvin argued that Barr Roofing
had not properly addressed the issue of harassment. Barr Roofing replied that
Melvin had raised the legal issue of a hostile work environment claim for the
first time in his response brief, as his complaint referred only to discrimination
and retaliation. Melvin moved to amend his complaint, but the district court
denied the motion. The district court held that Melvin failed both to
sufficiently plead a hostile work environment claim and to allege a prima facie
case on such a claim. It further held that summary judgment should be
granted for Barr Roofing on Melvin’s discrimination and retaliation claims
3
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No. 19-10214
because Melvin failed to show that Barr Roofing’s proffered reason for his
termination was pretextual. Melvin timely appealed.
Discussion
We review a grant of summary judgment de novo. Smith v. Reg’l Transit
Auth., 827 F.3d 412, 417 (5th Cir. 2016). Summary judgment is appropriate if
“there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” FED. R. CIV. P. 56(a). “A dispute about a
material fact is ‘genuine’ if the evidence is such that a reasonable jury could
return a verdict for the non-moving party.” Shackelford v. Deloitte & Touche,
LLP, 190 F.3d 398, 403 (5th Cir. 1999) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)). We address each issue in turn. 1
A. Discrimination
When using circumstantial evidence, a plaintiff’s claims of unlawful
discrimination are analyzed using the McDonnell Douglas 2 burden-shifting
framework. See Rogers v. Pearland Indep. Sch. Dist., 827 F.3d 403, 408 (5th
Cir. 2016). Under this framework, courts employ a three-step approach.
Initially, a Title VII plaintiff must “set forth a prima facie case of race-based
discrimination.” Id. If the plaintiff successfully does so, then “the burden of
production shifts to the employer to articulate some legitimate,
nondiscriminatory reason for the employee’s rejection.” Id. (internal quotation
marks omitted). The burden then shifts back to the employee to “offer some
1 In addition to his Title VII claims, Melvin brought claims under 42 U.S.C. § 1981.
The district court held that Melvin’s § 1981 claims were preempted by his Title VII claims.
That holding was error, as plaintiffs may properly bring claims of racial discrimination
against private employers under both § 1981 and Title VII. See Robertson v. Bd. of Sup’rs of
La. State Univ. Agric. & Mech. Coll., 273 F.3d 1108, 2001 WL 1131950, at *1 (5th Cir. 2001)
(per curiam) (noting that Title VII is not “the exclusive remedy for race based employment
discrimination”). Because the two sets of claims rise and fall on the same facts, we do not
address the § 1981 claims separately. See Parker v. Miss. St. Dep’t of Pub. Welfare, 811 F.2d
925, 927 n.3 (5th Cir. 1987).
2 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
4
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evidence that the reason proffered was a pretext for discrimination.” Id. At
the pretext stage, a “heightened but-for causation requirement applies.”
Garcia v. Prof’l Contract Servs., Inc., 938 F.3d 236, 243 (5th Cir. 2019).
To establish a prima facie case for race-based discrimination, Melvin
must show that he (1) “is a member of a protected class,” (2) “was qualified for
the position,” (3) “was subject to an adverse employment action,” and (4) “was
replaced by someone outside [his] protected class or was treated less favorably
than other similarly situated employees outside [his] class.” Haire v. Bd. of
Sup’rs of La. State Univ. Agric. & Mech. Coll., 719 F.3d 356, 363 (5th Cir. 2013).
Melvin fails to identify a similarly situated comparator who received
better treatment. Melvin alleges that when he took and failed a drug test in
2016, his white coworker E.H. passed the drug test only because he swapped
out his affected urine sample with a “clean” one. However, Melvin was not
terminated for the failed drug test in 2016; he was terminated for failing to
take a later drug test. Melvin did not allege that other employees similarly
failed to take a drug test yet retained their job. Accordingly, Melvin has not
shown that a similarly situated person existed.
Melvin also contends that at some point, his white coworker E.H.
received a raise, but Melvin had been told that there were “no raises for
anyone.” Melvin does not dispute Barr Roofing’s contention that E.H. was paid
more because he had an additional professional skill: he was able to drive for
the company. Melvin argues that instead of erroneously saying that no
employees would receive a raise, the company should have explained to him
that E.H. received additional compensation because of his additional skill.
Niceties of employment etiquette are not actionable. See Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (“Title VII . . . does not set
forth a general civility code for the American workplace.” (internal quotation
marks and citation omitted)). If an employee with a different skillset was paid
5
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No. 19-10214
more than Melvin, then the employee is not a similarly situated comparator.
Because Melvin has not identified a similarly situated comparator, he
cannot make out a prima facie case for discrimination. We affirm the grant of
summary judgment on this claim.
B. Retaliation
Claims of unlawful retaliation under Title VII are also analyzed using
the McDonnell Douglas burden-shifting framework. Septimus v. Univ. of
Hous., 399 F.3d 601, 608 (5th Cir. 2005). To establish a prima facie case of
retaliation, a plaintiff must show “(1) that the plaintiff engaged in activity
protected by Title VII, (2) that an adverse employment action occurred, and (3)
that a causal link existed between the protected activity and the adverse
action.” Raggs v. Miss. Power & Light Co., 278 F.3d 463, 471 (5th Cir. 2002).
Here, Melvin alleged that he reported race-based harassment to his
supervisor after a coworker self-identified as a white supremacist and
threatened him. Reporting racial discrimination is an activity protected by
Title VII. See 42 U.S.C. § 2000e-3(a); Ackel v. Nat’l Commc’ns, Inc., 339 F.3d
376, 385 (5th Cir. 2003). He was terminated, which is an adverse employment
action. Melvin can also show a causal link: plaintiffs can rely on temporal
proximity to support a causal nexus when the protected activity and adverse
action occur “very close” in time. 3 Clark Cty. Sch. Dist. v. Breeden, 532 U.S.
268, 273 (2001) (per curiam). Melvin alleged that he was terminated just five
days after reporting harassment, which is very close. See Haire, 719 F.3d at
368 (determining that a time difference of roughly three months, coupled with
3 The district court stated that Melvin would be unable to establish a prima facie case
for retaliation because temporal proximity alone is insufficient to prove but-for causation.
However, but-for causation is not required at the prima facie stage; “temporal proximity
between protected activity and alleged retaliation is sometimes enough to establish causation
at the prima facie stage.” Porter v. Houma Terrebonne Hous. Auth. Bd. of Comm’rs, 810 F.3d
940, 948 (5th Cir. 2015).
6
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No. 19-10214
diminished responsibilities during that time, was “[close] enough to satisfy the
third prong”). Accordingly, viewing the facts in the light most favorable to
Melvin, he can establish a prima facie case for retaliation.
Having determined that Melvin can establish a prima facie case, the
burden next shifts to Barr Roofing to produce a legitimate, non-discriminatory
reason for Melvin’s termination. Barr Roofing did so: it stated that Melvin was
terminated for refusing to participate in a drug test, which violated its policy.
Last, the burden shifts back to Melvin to raise a fact issue as to pretext.
At the pretext stage, a plaintiff may alternatively support but-for causation
using the “cat’s paw” theory. See Fisher v. Lufkin Indus., Inc., 847 F.3d 752,
758 (5th Cir. 2017). Under this theory, an employer may be held liable “even
if the ultimate decisionmaker [him]self holds no discriminatory animus as long
as the plaintiff can demonstrate that [the] decision was influenced by another
who does hold such animus.” Id. “Animus and responsibility for the adverse
action can both be attributed to the earlier agent . . . if the adverse action is
the intended consequence of that agent’s discriminatory conduct.” Staub v.
Proctor Hosp., 562 U.S. 411, 419 (2011). If a decisonmaker’s judgment to
terminate or discipline an employee is not supported by “a cause of
independent origin that was not foreseeable,” then the chain of events may
suggest that the supervisor’s decision was linked to the other person’s
retaliatory animus. Id. at 420.
Melvin contends that Hawkins reported him to Galloway for a
retaliatory reason: Hawkins was unhappy that Melvin had reported his
coworker for threatening to harm Melvin because of his race. Specifically, after
a coworker who identified as a white supremacist threw Melvin’s work tools
out of a moving vehicle and threatened to harm him, Hawkins told Melvin he
disliked snitches and reported to Galloway that Melvin had poor work
performance and behavior. The next day, Melvin was told to take a drug test.
7
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No. 19-10214
A couple days later, Hawkins informed Melvin that he would no longer work
under Hawkins’s supervision. Then, Galloway fired Melvin.
Based on these facts, a reasonable jury might infer that Hawkins made
negative reports about Melvin’s work to Galloway in order to trigger some type
of investigation or adverse action against Melvin. The quick unfolding of
events further supports this inference. Although temporal proximity alone is
insufficient to establish but-for causation, 4 the quick timing here, coupled with
Hawkins’s comments, if believed by a jury, would support a finding that
Hawkins impermissibly influenced Galloway. The cat’s paw doctrine does not
require that Galloway himself intended for the drug test to lead to Melvin’s
firing. If Hawkins’s complaints about Melvin’s performance were intended to
trigger an adverse action against Melvin, then Barr Roofing may be liable
under the cat’s paw doctrine. See Fisher, 847 F.3d at 758.
Contrary to Barr Roofing’s contention, this case is distinguishable from
Higgins v. Lufkin Industries, in which we affirmed a grant of summary
judgment based on an employee’s refusal to submit to a drug test. 633 F. App’x
229 (5th Cir. 2015) (per curiam). Higgins alleged that a coworker had made
sexually suggestive and racially offensive comments toward her. Id. at 230.
The co-worker became a supervisor, and after Higgins failed to follow his
instructions, he sent her home for a day without docking her pay. Id. at 230–
31. Higgins met with human resources about the issue and informed them
about the previously made offensive comments. Id. at 231. A couple months
later, a coworker reported that Higgins had brought marijuana to work;
Higgins then refused to take a drug test and was fired for doing so. Id. We
held that the “cat’s paw theory of liability [was] inapplicable,” as “Higgins
offer[ed] no evidence that [the co-worker-turned-supervisor] influenced [the
4 Hernandez v. Metro. Transit Auth. of Harris Cty., 673 F. App’x 414, 420 (5th Cir.
2016) (per curiam).
8
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No. 19-10214
ultimate decisionmaker] to fire her” and that the firing was “based on Higgins’s
refusal to submit to the requested drug test, . . . in violation of company policy.”
Id. at 233.
Here, however, Melvin’s allegations suggest that Hawkins influenced
Galloway’s decision to fire Melvin, especially since Hawkins allegedly informed
Melvin that he was unhappy with Melvin’s “snitching” directly before
complaining about his performance. Importantly, it is unclear whether Melvin
truly “refused” to take a drug test or was simply unable to do so under the
circumstances. Moreover, to require a “follow-up” drug test on the heels of an
allegation of discrimination could create an inference that something suspect
occurred.
In sum, resolving all inferences in Melvin’s favor, we conclude that he
sufficiently alleged a retaliation claim using the cat’s paw doctrine.
C. Hostile Work Environment
We finally address whether the grant of summary judgment in Barr
Roofing’s favor on Melvin’s hostile work environment claim was proper.
To prove a hostile work environment claim, a plaintiff must show that
“(1) [he] belongs to a protected group; (2) [he] was subjected to unwelcome
harassment; (3) the harassment complained of was based on race; (4) the
harassment complained of affected a term, condition, or privilege of
employment; and (5) the employer knew or should have known of the
harassment in question and failed to take prompt remedial action.” Ramsey v.
Henderson, 286 F.3d 264, 268 (5th Cir. 2002).
Barr Roofing contends that Melvin failed to plead a hostile work
environment claim. In his complaint, Melvin alleged that Barr Roofing’s
supervisors and employees engaged in discriminatory
practices against [Melvin] on the basis of his race,
including, but not limited to, engaging in a pattern and
practice of harassment and humiliation of [Melvin
9
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No. 19-10214
and] using racial slurs and epithets directed toward
[Melvin] . . . .
Melvin’s complaint did not contain the phrase “hostile work environment.”
Under Federal Rule of Civil Procedure 8(a)(2), a plaintiff’s complaint
must contain “a short and plain statement of the claim showing that [he] is
entitled to relief.” A plaintiff is not required to plead facts establishing a prima
facie case, but his complaint must give the defendant “fair notice of the basis
for [his] claims.” Swierkiewicz v. Sorema N. A., 534 U.S. 506, 511–12, 514
(2002). The Supreme Court has cautioned that courts should not dismiss
claims because of an “imperfect statement of the legal theory.” Johnson v. City
of Shelby, 574 U.S. 10, 11 (2014) (per curiam).
Melvin’s complaint identifies the legal theory: he faced an environment
of “harassment” because his coworkers and supervisors consistently used
racial slurs. An allegation of harassment is the underlying basis for a hostile
work environment claim. Accordingly, a defendant receiving an allegation of
continuous and frequent harassment would be on notice of the plaintiff’s legal
theory. We conclude that Melvin sufficiently alleged a hostile work
environment claim; failure to use the “magic words” is not dispositive. St. Paul
Mercury Ins. Co. v. Williamson, 224 F.3d 425, 434 (5th Cir. 2000).
Barr Roofing also contends that Melvin failed to establish a prima facie
case of a hostile work environment. We disagree. Melvin alleged facts to
support a hostile work environment claim. First, as an African-American man,
Melvin belongs to a protected group. See 42 U.S.C. § 2000e-2(a)(1). Second, he
alleged that he was subject to harassment including racial slurs.
Third, racial slurs are based on race. The district court held that Melvin
failed to allege harassment because “[p]oor treatment without more is not
sufficient to show harassment based on race.” Eaton-Stephens v. Grapevine
Colleyville Indep. Sch. Dist., 715 F. App’x 351, 356 (5th Cir. 2017) (per curiam).
10
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No. 19-10214
But the district court’s reliance on Eaton-Stephens is misplaced. In that case,
we held that a school counselor had not established a hostile work environment
by (1) alleging that one of her coworkers had called her “the little black
counselor” and (2) raising other general concerns about her treatment at work
(for example, that a supervisor chastised her for performance-related issues in
front of students’ parents). Id. at 352–54. Notwithstanding the single race-
related comment, the plaintiff’s allegations of poor treatment did not show
harassment based on race. See id. at 356. But Melvin did not simply complain
of poor or unkind management. Nor did he allege that he experienced a single,
offhand comment related to his race. Instead, Melvin alleged that he was
consistently called derogatory racial slurs over the course of years. Consistent
racial slurs are certainly based on race.
Fourth, for harassment to have “affected a term, condition, or privilege
of employment,” it must be “sufficiently severe or pervasive ‘to alter the
conditions of the victim’s employment and create an abusive working
environment.’” Harvill v. Westward Commc’ns, L.L.C., 433 F.3d 428, 434 (5th
Cir. 2005) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986))
(alteration omitted). A plaintiff “must subjectively perceive the harassment as
sufficiently severe or pervasive, and this subjective perception must be
objectively reasonable.” Frank v. Xerox Corp., 347 F.3d 130, 138 (5th Cir.
2003). Courts consider “the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an employee’s
work performance.” Walker v. Thompson, 214 F.3d 615, 625 (5th Cir. 2000),
abrogated on other grounds by Burlington, 548 U.S. at 53. In some cases, “a
single incident of harassment” may be sufficiently severe to give rise to a claim;
“a continuous pattern of much less severe incidents of harassment” may do so
as well. EEOC v. WC&M Enters., Inc., 496 F.3d 393, 400 (5th Cir. 2007).
11
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Courts consider the circumstances as a whole, and “[n]o single factor is
determinative.” Id. at 399.
Here, Melvin alleged that he was continuously called the n-word at work
over the course of years. We have held that African-American plaintiffs subject
to racial slurs and derogatory comments over the course of three years
sufficiently alleged severe or pervasive harassment. Walker, 214 F.3d at 626.
Melvin also alleged that, after a coworker threw his tools out of a vehicle and
Melvin said he would report the incident, the coworker invoked white
supremacy and threatened to throw Melvin off a roof during work. This
incident was a threat of physical violence, and invoking white supremacy was
certainly threatening and humiliating. Barr Roofing’s contention that the
comments should not be actionable because Melvin was able to perform his
work duties is unavailing, as “a showing that the employee’s job performance
suffered is simply a factor to be considered, not a prerequisite.” WC&M, 496
F.3d at 399–400. We hold that, under the totality of the circumstances, Melvin
has alleged that the harassment was sufficiently severe or pervasive.
Fifth, an employer is liable for harassment only if it knew or should have
known about the harassment and failed to take remedial action. Ramsey, 286
F.3d at 268. In his affidavit, 5 Melvin stated that he complained multiple times
about the harassment to Hawkins and Galloway, yet “to [his] knowledge, no
actions were ever taken to stop the harassment or slurs.” Melvin also stated
that employees, including Hawkins, continued to make derogatory comments
after Melvin complained. A jury could conclude that Barr Roofing failed to
take remedial action if, after Melvin complained, his coworkers—including his
5 Barr Roofing tries to discredit Melvin’s affidavit, asserting that it is self-serving and
conclusory. However, “a party’s own testimony is often ‘self-serving,’ but we do not exclude
it as incompetent for that reason alone.” C.R. Pittman Constr. Co. v. Nat’l Fire Ins. Co. of
Hartford, 453 F. App’x 439, 443 (5th Cir. 2011) (per curiam).
12
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No. 19-10214
supervisor—continued to use racial slurs in the face of Melvin’s request to the
contrary. Accordingly, a fact issue exists about whether Barr Roofing took
action to remedy the harassment.
We determine that the district court erred in granting summary
judgment against Melvin’s hostile work environment claim, as Melvin
sufficiently raised the issue in his complaint and alleged a prima facie case.
Conclusion
For the foregoing reasons, we AFFIRM the district court’s judgment that
Melvin failed to establish a prima facie case for discrimination, REVERSE its
grant of summary judgment on his retaliation claim, and REVERSE its grant
of summary judgment on his hostile work environment claim. We also
REVERSE the district court’s holding that Melvin’s § 1981 claims are
preempted by his Title VII claims. We REMAND the case to the district court
for further proceedings consistent with this opinion.
13
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01-03-2023
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04-07-2020
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https://www.courtlistener.com/api/rest/v3/opinions/4523253/
|
Case: 19-20237 Document: 00515374002 Page: 1 Date Filed: 04/07/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-20237 April 7, 2020
Lyle W. Cayce
DAVID BUREN WILSON, Clerk
Plaintiff - Appellant
v.
HOUSTON COMMUNITY COLLEGE SYSTEM,
Defendant - Appellee
Appeal from the United States District Court
for the Southern District of Texas
Before DAVIS, SMITH, and STEWART, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Plaintiff David Wilson appeals the district court’s judgment dismissing
his 42 U.S.C. § 1983 complaint for lack of subject matter jurisdiction under
Rule 12(b)(1). Wilson, a former trustee of the Board of Trustees (“Board”) of
Defendant Houston Community College System (“HCC”), asserts that HCC
violated his First Amendment right to free speech when the Board publicly
censured him. Because, under our precedent, Wilson’s allegations establish
standing and state a claim for relief under § 1983 for a First Amendment
violation, we REVERSE the district court’s judgment and REMAND Wilson’s
§ 1983 claim for damages for further proceedings. As the parties agree,
however, Wilson’s claims for declaratory and injunctive relief are moot, as
Wilson is no longer a Board trustee. Therefore, we GRANT HCC’s motion for
Case: 19-20237 Document: 00515374002 Page: 2 Date Filed: 04/07/2020
No. 19-20237
partial dismissal of Wilson’s appeal and instruct the district court to dismiss
Wilson’s claims for declaratory and injunctive relief after remand.
I. BACKGROUND
HCC is a public community college district 1 that operates community
colleges throughout the greater Houston area. 2 HCC is run by its Board, which
is made up of nine trustees. 3 Each trustee is elected by the public from single-
member districts to serve a six-year term without remuneration. 4 Through the
resolutions and orders it passes, the Board shapes HCC’s policy, enhances the
institution’s public image, and preserves institutional independence. 5 On
November 5, 2013, Wilson was elected to the Board as the trustee for HCC
District 2.
Beginning in 2017, Wilson voiced concern that trustees were violating
the Board’s bylaws and not acting in the best interests of HCC. After
disagreeing with HCC’s decision to fund a campus in Qatar, Wilson made his
complaints public by arranging robocalls regarding the Board’s actions and
interviewing with a local radio station. When HCC allowed one trustee to vote
via videoconference, Wilson contended that the bylaws prohibited such voting.
He subsequently filed a lawsuit against HCC and the individual Board trustees
in state court seeking a declaratory judgment that the videoconference vote
was illegal under the bylaws and requesting an injunction. After the Board
allegedly excluded Wilson from an executive session, he filed a second lawsuit
1 Under Texas law, a community college district is a “school district,” and a school
district is considered a “governmental agency,” along with municipalities and other political
subdivisions of the state. TEX. LOC. GOV’T. CODE ANN. §§ 271.003(4), (9).
2 TEX. EDUC. CODE ANN. §§ 130.0011, 130.182.
3 Id. § 130.084.
4 Id. § 130.082.
5 Id. § 51.352.
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No. 19-20237
against HCC and the trustees in state court asserting that his exclusion was
unlawful and again seeking declaratory and injunctive relief. 6
Additionally, Wilson hired a private investigator to confirm that one of
the trustees did in fact reside within the district in which she was elected. He
maintained a website where he published his concerns, referring to his fellow
trustees and HCC by name. Wilson also hired a private investigator to
investigate HCC.
On January 18, 2018, the Board voted in a regularly-scheduled session
to adopt a resolution publicly censuring Wilson for his actions. In the censure
resolution, the Board chastised Wilson for acting in a manner “not consistent
with the best interests of the College or the Board, and in violation of the Board
Bylaws Code of Conduct.” The censure, the Board emphasized, was the
“highest level of sanction available,” as Wilson was elected and could not be
removed. The Board directed Wilson to “immediately cease and desist from all
inappropriate conduct” and warned that “any repeat of improper behavior by
Mr. Wilson will constitute grounds for further disciplinary action by the
Board.” 7
Upon being censured, Wilson amended his first state-court petition to
include claims against HCC and the trustees under 42 U.S.C. § 1983, asserting
that the censure violated his First Amendment right to free speech and his
Fourteenth Amendment right to equal protection. Wilson asserted that the
Board’s bylaws were overly broad and unconstitutional as applied to him and
were subject to “strict scrutiny” review. He therefore requested that HCC and
6 Wilson ultimately amended his first lawsuit to include the claims asserted in his
second lawsuit and voluntarily dismissed the second lawsuit.
7 The Board also resolved to impose the following sanctions as part of its censure:
(1) Wilson would be ineligible for election to Board officer positions for the 2018 calendar
year, (2) Wilson would be ineligible for reimbursement for any college-related travel for the
2017-18 college fiscal year, and (3) Wilson’s requests for access to the funds in his Board
account for community affairs would require Board approval.
3
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No. 19-20237
the trustees be enjoined from enforcing the censure. Wilson also sought
$10,000 in damages for mental anguish, $10,000 in punitive damages, and
reasonable attorney’s fees.
HCC and the trustees subsequently removed Wilson’s state-court
proceeding to federal district court on the basis of federal question jurisdiction.
Wilson filed a motion for remand, which the district court denied. Wilson
thereafter amended his complaint naming only HCC as a defendant and
dropping his claims against the individual trustees.
HCC moved to dismiss Wilson’s suit pursuant to Rule 12(b)(1) for lack of
jurisdiction and Rule 12(b)(6) for failure to state a claim. The district court
granted HCC’s motion to dismiss under Rule 12(b)(1) for lack of jurisdiction,
determining that Wilson could not demonstrate an injury in fact and therefore
lacked Article III standing. Wilson timely appealed.
In August 2019, Wilson resigned as trustee for HCC’s District 2. In the
November 2019 election, Wilson ran as a candidate in the race for trustee of
HCC’s District 1. He was ultimately defeated in the December 2019 run-off
election.
II. DISCUSSION
A. Standard of Review
This court’s review of dismissals under Rule 12(b)(1) for lack of
jurisdiction and dismissals under Rule 12(b)(6) for failure to state a claim is de
novo. 8 When a party files multiple Rule 12 motions, we must consider the
Rule 12(b)(1) jurisdictional attack before considering the Rule 12(b)(6) merits
challenge. 9 The party responding to the 12(b)(1) motion bears the burden of
8 Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (per curiam).
9 Id.
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proof that subject matter jurisdiction exists. 10 A district court may find a lack
of subject matter jurisdiction on either: “(1) the complaint alone; (2) the
complaint supplemented by undisputed facts evidenced in the record; or (3) the
complaint supplemented by undisputed facts plus the court’s resolution of
disputed facts.” 11
To survive a motion to dismiss under Rule 12(b)(6), “a complaint must
contain sufficient factual matter, accepted as true, to state a claim to relief that
is plausible on its face.” 12 “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” 13
B. Standing
Under Article III of the Constitution, federal courts can resolve only
“cases” and “controversies.” 14 In line with this requirement, a plaintiff must
have standing—that is, a showing of (1) an injury in fact (2) that is traceable
to the defendant’s conduct and (3) that can be redressed by the court. 15 An
injury in fact is “an invasion of a legally protected interest which is (a) concrete
and particularized, and (b) actual or imminent, not conjectural or
hypothetical.” 16 In the context of free speech, “the governmental action need
not have a direct effect on the exercise of First Amendment rights . . . [but]
must have caused or must threaten to cause a direct injury to the plaintiffs.”17
10 Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980).
11 Voluntary Purchasing Groups, Inc. v. Reilly, 889 F.2d 1380, 1384 (5th Cir. 1989)
(quoting Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)).
12 Edionwe v. Bailey, 860 F.3d 287, 291 (5th Cir. 2017) (quoting Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009)).
13 Iqbal, 556 U.S. at 678.
14 U.S. CONST. art. III, § 2.
15 Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992).
16 Id. (cleaned up).
17 Meese v. Keene, 481 U.S. 465, 472 (1987).
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In dismissing Wilson’s complaint under Rule 12(b)(1), the district court,
relying on the Tenth Circuit’s decision in Phelan v. Laramie County
Community College Board of Trustees, held that Wilson had not suffered any
injury in fact. 18 Specifically, the district court concluded that Wilson could not
show an invasion of a legally protected interest because the Board’s censure
did not forbid Wilson from performing his official duties or speaking publicly. 19
The district court erred in relying on Phelan to determine that Wilson lacked
standing, however, because the Phelan court held that the plaintiff in fact had
standing, noting that the plaintiff had alleged the Board’s censure tarnished
her reputation. 20
In this case, Wilson alleges that the censure was issued to punish him
for exercising his free speech rights and caused him mental anguish. Under
our precedent, Wilson’s allegation of retaliatory censure is enough to establish
an injury in fact. 21 Additionally, the Supreme Court has held that a free speech
violation giving rise to a reputational injury is an injury in fact. 22 A censure is
defined as an “official reprimand or condemnation; an authoritative expression
18 Wilson v. Houston Cmty. Coll. Sys., No. 4:18-CV-00744, 2019 WL 1317797, at *3
(S.D. Tex. Mar. 22, 2019); see also Phelan v. Laramie Cty. Cmty. Coll. Bd. of Trustees, 235
F.3d 1243 (10th Cir. 2000).
19 Wilson, 2019 WL 1317797 at *3.
20 235 F.3d at 1247 n.1.
21 See Colson v. Grohman, 174 F.3d 498, 508 (5th Cir. 1999) (noting that “at least
twice, this court has granted relief to elected officials claiming First Amendment retaliation”)
(citations omitted). Our sister courts agree that a retaliatory action resulting in a chilling of
free speech constitutes an injury in fact. See, e.g., Thaddeus-X v. Blatter, 175 F.3d 378, 394
(6th Cir. 1999) (en banc) (“[T]he harm suffered is the adverse consequences which flow from
the . . . constitutionally protected action.”); Hines v. Gomez, 108 F.3d 265, 269 (9th Cir. 1997)
(“The injury asserted is the retaliatory accusation’s chilling effect on [plaintiff’s] First
Amendment rights . . . . We hold that [plaintiff’s] failure to demonstrate a more substantial
injury does not nullify his retaliation claim.”). See also Ibanez v. Fla. Dep’t of Bus. & Prof’l
Regulation, Bd. of Accountancy, 512 U.S. 136, 139 (1994) (holding, in commercial speech case,
that state board of accountancy’s censure of accountant violated First Amendment, thereby
assuming that a censure alone constitutes an injury in fact).
22 Meese v. Keene, 481 U.S. 465, 473 (1987).
6
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of disapproval or blame; reproach.” 23 Wilson alleges that a public censure has
caused him mental anguish. That injury stemming from his censure, like a
reputational injury, is enough to confer standing. 24
Though not precisely a matter of standing, Wilson’s claims for
declaratory and injunctive relief run up against a jurisdictional problem.
Wilson is no longer a Board trustee; consequently, the HCC’s Code of Conduct
no longer governs him. Therefore, his claims seeking declaratory and
injunctive relief that the Code of Conduct, and as applied to him through the
resolution of censure, is an unconstitutional prior restraint are moot. We grant
HCC’s motion for partial dismissal of Wilson’s appeal of those claims and
instruct the district court to dismiss those claims as moot after remand.
Wilson’s claim for damages continues to present a live controversy. 25
C. First Amendment Claim
As we have noted, if “constitutional rights were violated, and if that
violation ‘caused actual damage,’ then [the plaintiff] has ‘stated a live claim
under § 1983.’” 26 Wilson argues that the censure he suffered is an actionable
First Amendment claim under § 1983. Although the district court did not
technically reach this issue, having dismissed the case for lack of standing
under Rule 12(b)(1) and not for failure to state a claim under Rule 12(b)(6), it
23 Censure, BLACK’S LAW DICTIONARY (11th ed. 2019).
24 In Sims v. Young, 556 F.2d 732, 734 (5th Cir. 1977), a firefighter brought a First
Amendment claim under § 1983 against city officials after being suspended for twenty days.
We held that the plaintiff had satisfied the injury-in-fact requirement of standing despite the
fact he had since been reinstated because the suspension remained “a blot on his record.” Id.
A censure, like a suspension, can be characterized as a “blot.”
25 See Boag v. MacDougall, 454 U.S. 364 (1975) (per curiam) (although respondent
complaining of solitary confinement had since been transferred, “the transfer did not moot
the damages claim”); Morgan v. Plano Indep. Sch. Dist., 589 F.3d 740, 748 (5th Cir. 2009)
(claim for nominal damages avoids mootness); Pederson v. La. State Univ., 213 F.3d 858, 874
(5th Cir. 2000) (graduation mooted claims for injunctive relief, not damages).
26 Wilson v. Birnberg, 667 F.3d 591, 595–96 (5th Cir. 2012) (quoting Henschen v. City
of Houston, 959 F.2d 584, 588 (5th Cir. 1992)).
7
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effectively concluded that Wilson’s censure did not give rise to a First
Amendment claim. 27 The district court followed Phelan, which dismissed the
plaintiff’s claim on summary judgment, determining that the censure did not
infringe on the plaintiff’s free speech rights because the censure did not punish
her for exercising those rights nor did it deter her free speech. 28 Wilson argues
that the district court improperly endorsed the Tenth Circuit’s decision in
Phelan, ignoring Fifth Circuit precedent and failing to recognize the protection
afforded to an elected official’s political speech. We agree.
The Supreme Court has long stressed the importance of allowing elected
officials to speak on matters of public concern. 29 We have echoed this principle
in our decisions, emphasizing that “[t]he role that elected officials play in our
society makes it all the more imperative that they be allowed freely to express
themselves on matters of current public importance.” 30 As a result, and as
described below, this court has held that censures of publicly elected officials
can be a cognizable injury under the First Amendment.
We first visited whether a censure can constitute a First Amendment
violation in Scott v. Flowers. 31 There, a plaintiff was elected to a four-year term
as a justice of the peace in Texas. 32 Concerned that the state was dismissing
the majority of traffic-offense ticket appeals, the judge published an “open
27 See Wilson v. Houston Cmty. Coll. Sys., No. 4:18-CV-00744, 2019 WL 1317797, at
*3 (S.D. Tex. Mar. 22, 2019) (“[The Tenth Circuit in Phelan] has established that a majority’s
decision to censure a member of a political body does not give rise to a First Amendment
violation claim. While not binding, the court’s reasoning in Phelan, is instructive here.”
(internal citation omitted)).
28 Phelan v. Laramie Cty. Cmty. Coll. Bd. of Trustees, 235 F.3d 1243, 1247 (10th Cir.
2000).
29 See, e.g., Bond v. Floyd, 385 U.S. 116, 135–36 (1966) (“The manifest function of the
First Amendment in a representative government requires that legislators be given the
widest latitude to express their views on issues of policy.”).
30 Rangra v. Brown, 566 F.3d 515, 524 (5th Cir.) (citation omitted), dismissed as moot
en banc, 584 F.3d 206 (5th Cir. 2009).
31 910 F.2d 201 (5th Cir. 1990).
32 Id. at 203.
8
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letter” to county officials criticizing the district attorney’s office and county
court. 33 The Texas Commission on Judicial Conduct (“Commission”)
subsequently issued a formal, public reprimand to the judge for being
“insensitive” in his statement, thereby “cast[ing] public discredit upon the
judiciary.” 34 The reprimand was a “warning,” cautioning him to be “more
restrained and temperate” in the future. 35 The judge filed suit under § 1983,
arguing the public censure violated his First Amendment right of free speech. 36
This court applied the Supreme Court’s two-step inquiry to assess public
employees’ claims of First Amendment violations set forth in Pickering v.
Board of Education. 37 First, we determined that the judge’s speech addressed
a matter of public concern and therefore was protected speech. 38 Second, we
balanced the judge’s free speech rights against the Commission’s
countervailing interest in promoting the efficient performance of its normal
functions. 39 We underscored that the judge was “not hired by a governmental
employer. Instead, he was an elected official, chosen directly by the voters of
his justice precinct, and, at least in ordinary circumstances, removable only by
them.” 40 The state consequently could not justify its reprimand “on the ground
that it was necessary to preserve coworker harmony or office discipline.” 41
While we recognized that the state may proscribe the speech of elected judges
more so than other elected officials, the censure touched upon “core first
33 Id. at 204.
34 Id.
35 Id. at 205 n.6.
36 Id. at 205.
37 Id. at 210; see Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).
38 Id. at 211.
39 Id.
40 Id. at 212.
41 Id.
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amendment values.” 42 We concluded that the state’s “concededly legitimate
interest in protecting the efficiency and impartiality of the state judicial
system” could not outweigh the judge’s First Amendment rights, and we
expunged the censure. 43
In Colson v. Grohman, this court reiterated there is “no doubt” that
formal reprimands are actionable under § 1983. 44 Reaffirming Scott, we
explained that “a formal reprimand, by its very nature, goes several steps
beyond a criticism or accusation and even beyond a mere investigation.” 45 “It
is punitive in a way that mere criticisms, accusations, and investigations are
not.” 46
We again held that elected officials are entitled to be free from retaliation
for constitutionally protected speech in Jenevein v. Willing. 47 That case, like
Scott, centered on the Commission’s public censure of an elected judge, this
time a state district court judge. 48 The judge had given a press conference and
sent a mass email to explain that he was filing a complaint against a lawyer
for comments made about him in pleadings and that he therefore had to recuse
himself. 49
Breaking from Scott, we held that the Pickering balancing test did not
apply to elected employees of the state. 50 Instead, we adopted strict scrutiny to
assess the government’s regulation of an elected official’s speech to his
42 Id. (quoting Morial v. Judiciary Comm’n of State of La., 565 F.2d 295, 301 (5th Cir.
1977)).
Id. at 212–13.
43
174 F.3d 498, 512 (5th Cir. 1999).
44
45 Id. at 512 n.7.
46 Id. In Colson, by contrast, the court found that the plaintiff had failed to state a
claim; she was “never arrested, indicted, or subjected to a recall election[,] [n]or was she
formally reprimanded.” Id. at 511 (internal footnote omitted).
47 493 F.3d 551 (5th Cir. 2007).
48 Id. at 556.
49 Id. at 553–55.
50 Id. at 557–58.
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constituency. 51 Noting that a state’s interest in suppressing the speech of an
elected official is weak, we held that even though the order was “entered in
good faith effort to pursue the public interest . . . [t]o the extent that the
commission censured Judge Jenevein for the content of his speech, shutting
down all communication between the Judge and his constituents, we reverse
and remand with instructions to expunge that part of the order.” 52
The above precedent establishes that a reprimand against an elected
official for speech addressing a matter of public concern is an actionable First
Amendment claim under § 1983. Here, the Board’s censure of Wilson
specifically noted it was punishing him for “criticizing other Board members
for taking positions that differ from his own” concerning the Qatar campus,
including robocalls, local press interviews, and a website. The censure also
punished Wilson for filing suit alleging the Board was violating its bylaws. As
we have previously held, “[R]eporting municipal corruption undoubtedly
constitutes speech on a matter of public concern.” 53 Therefore, we hold that
Wilson has stated a claim against HCC under § 1983 in alleging that its Board
violated his First Amendment right to free speech when it publicly censured
him.
51 Id. at 558. In Rangra v. Brown, this court later clarified that the Pickering balancing
test did not apply to elected officials’ First Amendment retaliation claims, despite its earlier
use in Scott, because of intervening Supreme Court precedent (specifically, Republican Party
of Minn. v. White, 536 U.S. 765, 774–75 (2002)). 566 F.3d 515, 525 n.26 (5th Cir.), dismissed
as moot en banc, 584 F.3d 206 (5th Cir. 2009). The court highlighted other instances in which
strict scrutiny was used to protect free speech concerning public matters. Id. at 525 n.25.
52 Jenevein, 493 F.3d at 560–62.
53 Harmon v. Dall. Cty., 927 F.3d 884, 893 (5th Cir. 2019), as revised (July 9, 2019)
(per curiam). See also Lane v. Franks, 573 U.S. 228, 241 (2014) (“[C]orruption in a public
program and misuse of state funds [] obviously involve[] a matter of significant public
concern.”); Garcetti v. Ceballos, 547 U.S. 410, 425 (2006) (“Exposing governmental
inefficiency and misconduct is a matter of considerable significance.”).
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HCC tries to distinguish Scott and Jenevein, arguing that the cases
concerned judges, not local legislators. But the fact that these cases dealt with
judges matters not. The Jenevein court emphasized that elected judges are,
ultimately, “political actors”—if anything, judges are afforded less protection
than legislators. 54 HCC also contends that, unlike here, the Texas Commission
on Judicial Conduct could order judges to undergo additional education,
suspend them, or remove them from office. Even if true, the Commission’s
censure did not draw upon such authority in either case. 55
HCC also argues that it had a right to censure Wilson as part of its
internal governance as a legislative body and that Wilson’s First Amendment
rights were not implicated. It cites to numerous cases from our sister circuits,
purportedly supporting its argument. A close review of those cases, however,
reveals that those cases either did not involve censures, or involved claims
against only the individual members of a governing body (and not the
governing body itself) who were entitled to assert legislative immunity. For
example, Blair v. Bethel School District did not involve a public censure but a
vote by a public school board to remove a fellow board member as vice president
of the board. 56 Zilich v. Longo also did not concern a censure, but a city council
54 493 F.3d at 560. See Scott v. Flowers, 910 F.2d 201, 212 (5th Cir. 1990) (“[W]e have
recognized that the state may restrict the speech of elected judges in ways that it may not
restrict the speech of other elected officials.”).
55 HCC is correct that the additional measures taken against Wilson—(1) his
ineligibility for election to Board officer positions, (2) his ineligibility for reimbursement for
college-related travel, and (3) the required approval of Wilson’s access to Board funds—do
not violate his First Amendment rights. A board member is not entitled to be given a position
as an officer. See Rash-Aldridge v. Ramirez, 96 F.3d 117, 119 (5th Cir. 1996) (per curiam) (a
city council member did not have a First Amendment claim after the council removed her
from a board following her public disagreement with the council majority). Second, nothing
in state law or HCC’s bylaws gives Wilson entitlement to funds absent approval. As for travel
reimbursements, we have held that a failure to receive travel reimbursement is not an
adverse employment action for a public employee’s First Amendment retaliation claim.
Benningfield v. City of Houston, 157 F.3d 369, 376 (5th Cir. 1998).
56 608 F.3d 540, 542 (9th Cir. 2010). The Ninth Circuit’s decision in Blair that the
school board was entitled to remove a board member from a titular position is consistent with
12
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No. 19-20237
resolution declaring that a former council member had violated the residency
requirement and a council ordinance authorizing suit to be filed to recover the
former member’s salary. 57 Consequently, these cases are inapposite.
The remainder of the cases relied upon by HCC involved claims against
only the individual members of a governing body. 58 As we have noted, under
Supreme Court precedent, absolute legislative immunity is a “doctrine[] that
protect[s] individuals acting within the bounds of their official duties, not the
governing bodies on which they serve.” 59 “Thus, even if the actions of the [state
agency’s] members are legislative, rather than administrative, the [state
agency] itself as a separate entity is not entitled to immunity for violation of
the [plaintiff’s] constitutional rights.” 60 Wilson has filed his claims against only
HCC, which is not entitled to legislative immunity from Wilson’s § 1983 suit.
Lastly, HCC argues that Wilson’s conclusory statements that he suffered
emotional harm are insufficient support for mental anguish damages. “To
survive a Rule 12(b)(6) motion to dismiss, a complaint ‘does not need detailed
factual allegations,’ but must provide the plaintiff’s grounds for entitlement to
relief—including factual allegations that when assumed to be true ‘raise a
right to relief above the speculative level.’” 61 As explained, Wilson has alleged
our decision in Rash-Aldridge that an elected official does not have a fundamental right to
an appointed leadership position. 96 F.3d at 119.
57 34 F.3d 359, 361 (6th Cir. 1994).
58 See Rangel v. Boehner, 785 F.3d 19, 21 (D.C. Cir. 2015) (claim by United States
congressman against fellow congressmen and other individuals for violating his
constitutional rights in issuing “a punishment of censure”); Whitener v. McWatters, 112 F.3d
740, 741 (4th Cir. 1997) (claim by county board member against fellow board members for
violating his First Amendment rights in censuring him for using abusive language); Romero-
Barcelo v. Hernandez-Agosto, 75 F.3d 23, 34 (1st Cir. 1996) (claim by former governor of
Puerto Rico against individual legislators for violating his constitutional rights during
legislative hearings investigating governor’s role in a political scandal).
59 Minton v. St. Bernard Par. Sch. Bd., 803 F.2d 129, 133 (5th Cir. 1986); see also Owen
v. City of Independence, Missouri, 445 U.S. 622, 657 (1980).
60 Minton, 803 F.2d at 133.
61 Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). See also 5 Charles Alan Wright et al., FED. PRAC. &
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a plausible violation of his First Amendment rights under § 1983. He contends
that, stemming from the defendant’s unlawful acts, he has suffered mental
anguish that warrants $10,000 in damages. 62 Based on the allegations set forth
in his pleadings, Wilson has alleged a plausible claim supporting mental
anguish damages. 63
III. CONCLUSION
Based on the foregoing, we REVERSE the district court’s judgment
dismissing Wilson’s complaint for lack of jurisdiction and REMAND Wilson’s
§ 1983 claim for damages for further proceedings consistent with this opinion.
Wilson’s claims for declaratory and injunctive relief are moot, as Wilson is no
longer a trustee on the Board of HCC. Therefore, we GRANT HCC’s motion for
partial dismissal of Wilson’s appeal and instruct the district court to dismiss
Wilson’s claims for declaratory and injunctive relief after remand.
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION; MOTION FOR PARTIAL DISMISSAL
GRANTED.
PROC. § 1202 (3d ed. 2019) (“[Rule 8(a)] requires the pleader to disclose adequate information
regarding the basis of his claim for relief as distinguished from a bare averment that he wants
relief and is entitled to it.”).
62 Wilson will still need to support such a claim properly in order to prevail after
remand. See, e.g., Hitt v. Connell, 301 F.3d 240, 250–51 (5th Cir. 2002) (detailing the evidence
needed to support compensatory damages for mental anguish stemming from a § 1983 free
speech jury verdict).
63 Although Wilson also seeks $10,000 in punitive damages, punitive damages are not
available against HCC. See City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 270–71 (1981)
(holding that municipalities and other government entities are immune from punitive
damages under § 1983).
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Writ of Error dismissed on motion of counsel for Plaintiff in Error;
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DECISION OF DISMISSAL
This matter is before the court on Defendant's Motion to Dismiss; Motion to Dismiss for Lack of Jurisdiction, Motion to Dismiss for Lack of Standing, Motion to Dismiss for Failure to State a Claim (Motion), filed on September 5, 2008, requesting that the Complaint be dismissed.
The first case management conference in the above-entitled matter was held October 1, 2008. Kenneth M. Krieser, member, appeared on behalf of Plaintiff. Michael L. Schneyder, Josephine County Assessor, appeared on behalf of Defendant. During the conference, the parties discussed Defendant's Motion. Because Plaintiff had not filed a response to Defendant's Motion, it was given until November 1, 2008, to file a written response. Plaintiff did not file a written response by November 1, 2008.
A second case management conference was held November 25, 2008. The same parties appeared. Defendant's Motion was discussed again. Plaintiff was given until December 8, 2008, to file a written response to Defendant's Motion. The court advised Plaintiff that if it failed to file a written response by December 8, 2008, its Complaint would be dismissed for lack of prosecution and Defendant's Motion granted.
As of this date, Plaintiff has not filed a written response to Defendant's Motion. Now, therefore, *Page 2
IT IS THE DECISION OF THIS COURT that Defendant's Motion is granted and this matter is dismissed.
Dated this ___ day of December 2008.
If you want to appeal this Decision, file a Complaint in the RegularDivision of the Oregon Tax Court, by mailing to: 1163 State Street,Salem, OR 97301-2563; or by hand delivery to: Fourth Floor, 1241 StateStreet, Salem, OR.
Your Complaint must be submitted within 60 days after the date of theDecision or this Decision becomes final and cannot be changed.
This document was signed by Presiding Magistrate Tanner on December17, 2008. The court filed and entered this document on December 17,2008. *Page 1
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I concur in the dissenting opinion of Justice Hobson.
It was clearly the intent of the Legislature, in enacting Section 40.01, Florida Statutes, 1941, F.S.A. relating to the qualifications and disqualifications of jurors, to improve our jury system by prohibiting convicted criminals from serving thereon. Any other view would be inconsistent with the provisions of Sub-section (3) of said Section 40.01, providing that "In the selection of jury lists only such persons as the selecting officers know, or have reason to believe, are law abiding citizens of approved integrity, good character, sound judgment and intelligence, and who are not physically or mentally infirm, shall be selected for jury duty." One who commits a felony in any other state of the Union, or in violation of a federal statute, cannot be said to be a "law abiding citizen", and he is no less a felon because the act was done in some state other than the State of Florida.
In the case of Amaya v. State, 87 Tex.Crim. R., 220 S.W. 98, 99, the Texas court held, under a statute similar to ours, that a juror who had been convicted of a felony in the United States Court was disqualified from serving on the jury and that a new trial should have been granted. The court said "* * * the object of the Legislature appears to be not the punishment of the convicted juror, but the protection of society against the pollution of the jury system by committing its execution to persons whose moral status has been judicially established as criminal. * * * The object sought by the Legislature, it is conceived, would not be attained by the rejection of one who had been convicted of theft in Texas, and accepting one who had been convicted of the same offense in an adjoining state. One who commits arson is no less infamous because the act was done in another state rather than this one, and the judicial determination in either state of his guilt would be conclusive of the facts."
This decision was followed by the Texas court in the case of Hughes v. State, 105 Tex.Crim. R., 284 S.W. 952, which held that a juror who had been convicted in federal court for manufacturing whiskey without paying the tax required by law was disqualified.
It should be noted that, under the majority opinion, it would be entirely possible to empanel a jury of twelve persons to try an accused for a capital offense, all of which persons were convicted felons under the laws of other states or the federal government. Obviously, in such a situation, the accused would not have had a fair and impartial trial by "a jury of his peers," and it is equally clear that it was never the intention of the Legislature to authorize such a trial. *Page 864
It is my opinion, therefore, that the judgment should be reversed and new trial granted.
ADAMS, C.J., and HOBSON, J., concur.
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In this case two young women, college and law school graduates, members of the bar and of previous good character and reputation, are shown to have been guilty of grave infractions of the rules of professional ethics. In fact, both freely, honestly and with apparent humility and regret, admit the irregularities in their law practice in connection with divorce cases.
They were charged with having forged answers, waivers and stipulations filed in such cases. This, the most serious charge made, they deny and the record fails to reveal proof of that charge. There is nothing in the record which shows either of the appellants to have been guilty of any immoral or criminal act.
It is the opinion of the writer that the charges proven as to irregular and unethical acts were not so serious as those made and proved in the case of In the Matter of Charges of Unprofessional Conduct against *Page 288
Samuel Rubin, opinion filed here on the 12th day of May, 1942. The majority of the Court does not concur in this view. In that case we reduced the period of suspension from five years as fixed by the Circuit Court to two years. In this cage the order was of suspension for a period of five years.
In an able opinion prepared by Mr. Justice TERRELL in the case of J. Carl Lambdin v. State, filed at this term of the Court, the Court availed itself of the opportunity to enunciate clearly the rules of conduct which must govern members of the Bar in the practice of law, if the Bar is to retain the confidence and respect of the public. We shall not now assume to add to what was said in that case.
The conduct of these young women merited the condemnation which it has received; but, in view of all the facts, we think the judgment of five years suspension was equivalent to disbarment and was out of proportion to the wrong which they did.
The information was in thirty-two counts. The thirty-second count was too vague and indefinite to constitute a charge Which the accused were required to answer.
The State failed to sustain by proof some of the material allegations of each and every of the other counts of the Information. In attempting to prove the allegations of such counts the State did prove repeated irregular actions and reprehensible conduct committed by the accused.
Also, the record discloses that these unethical, irregular and reprehensible actions on the part of the accused were, as heretofore stated, admitted by them in their formal answer, as well as in their testimony. Therefore, upon consideration of the entire record and *Page 289
the arguments and briefs of counsel, it is on the evidence and the admissions of respondents in the court below, ordered and adjudged that the "order of suspension" is hereby affirmed with the exception that the suspension of respondents be and is hereby adjudged to be "for and throughout a period of two years from date of the original order.
It is so ordered.
BROWN, C. J., WHITFIELD, CHAPMAN, THOMAS and ADAMS, JJ., concur.
TERRELL, J., dissents.
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IN THE SUPREME COURT OF THE STATE OF
Case Number: OP 20-0189
MONTANA
DISABILITY RIGHTS MONTANA
Petitioners,
v.
No. OP 20-0189
MONTANA JUDICIAL DISTRICTS 1-22, MONTANA
COURTS OF LIMITED JURISDICTION, MONTANA
DEPARTMENT OF CORRECTIONS, AND THE MON-
TANA BOARD OF PARDONS AND PAROLE,
Respondents.
ORDER
Upon consideration of Amici Curiae Public Health and Human Rights Experts’
Motion for Leave to File Brief in Support of Petitioner and the accompanying memorandum in
support, it is hereby ORDERED that Petitioner’s Motion is hereby GRANTED. Amici Curiae
Public Health and Human Rights Experts’ proposed brief, which was lodged with its proposed
brief, is hereby deemed filed.
SO ORDERED _________ day of _________, 2020.
__________________________________________
__________________________________________
__________________________________________
__________________________________________
16
__________________________________________
__________________________________________
__________________________________________
Electronically signed by:
26 Mike McGrath
Chief Justice, Montana Supreme Court
April 7 2020
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 19-2557
___________
JHENSY SAILLANT,
Petitioner
v.
ATTORNEY GENERAL
UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(B.I.A. No. A062-280-757)
Immigration Judge: Kuyomars Q Golparvar
____________________________________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
on March 23, 2020
Before: JORDAN, BIBAS, and PHIPPS, Circuit Judges
(Opinion filed: April 7, 2020)
____________________________________
___________
OPINION*
___________
PER CURIAM
Jhensy Saillant petitions for review of an order of the Board of Immigration Appeals
(BIA), which affirmed the Immigration Judge’s (IJ’s) removal order. We will deny the
petition for review.
Saillant is a citizen of Haiti. He entered the United States as an immigrant in 2011. He
was convicted of retail theft in 2016, in violation of 18 Pa. Cons. Stat. § 3929(a)(1), and
theft by deception in 2015, in violation of 18 Pa. Cons. Stat. § 3922(a). Having committed
a crime involving moral turpitude (CIMT) within five years of admission for which the
possible sentence is a year or more, he was charged with being removable under 8 U.S.C.
§ 1227(a)(2)(A)(i). Saillant admitted that he had the convictions with which he was
charged, and the IJ determined that the convictions rendered him removable. A.R. 81. Sail-
lant applied for asylum and related relief, but the IJ determined that he had not been perse-
cuted in the past and that he did not establish a likelihood that he would be persecuted in
the future based on a protected ground.1
Saillant appealed to the BIA, arguing only that his convictions were not CIMTs. The
BIA denied relief and Saillant filed a timely, pro se petition for review. After Saillant filed
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
Saillant was cut in a random attack when he was fifteen or sixteen years old and he feared
general violence in Haiti. He did not pursue his asylum claim before the BIA, however. So
although his opening brief argues that he is eligible for asylum and withholding of removal,
2
his opening brief, the Government filed a motion for a full remand and Saillant filed a
response in opposition. The motion to remand and response were referred to our panel, and
the case is now fully briefed.
We have jurisdiction under 8 U.S.C. § 1252. Because we conclude that Saillant is re-
movable for having committed a CIMT, however, § 1252(a)(2)(C)’s jurisdiction-stripping
provision applies. See Rachak v. Att’y Gen. of the U.S., 734 F.3d 214, 216 (3d Cir. 2013).
As a result, our jurisdiction is limited to questions of law and constitutional claims. See
8 U.S.C. § 1252(a)(2)(D). We review de novo the BIA’s determination that a conviction is
a CIMT, applying the categorical approach. See Moreno v. Att’y Gen. of the U.S., 887
F.3d 160, 163 (3d Cir. 2018); Ildefonso-Candelario v. Att’y Gen. of the U.S., 866 F.3d 102,
104 (3d Cir. 2017).
We agree that Saillant’s retail-theft conviction does not qualify as a CIMT under the
statute, because it is not a crime for which “a sentence of one year or longer may be im-
posed,” 8 U.S.C. § 1227(a)(2)(A)(i)(II). His conviction was graded as a summary offense,
A.R. 148, see 18 Pa. Cons. Stat. § 3929(b)(1)(i), punishable by a maximum of ninety days
in prison, see 18 Pa. Cons. Stat. § 1105.
Saillant argues that his theft-by-deception conviction is also not a CIMT under the cat-
egorical approach. First, he argues that a conviction under 18 Pa. Cons. Stat. § 3922(a)
this Court lacks jurisdiction to consider the argument because he did not exhaust it before
the BIA and the BIA did not address the substance of the issue. See 8 U.S.C. § 1252(d); cf.
Bin Lin v. Att’y Gen. of the U.S., 543 F.3d 114, 126 (3d Cir. 2008) (concluding that an
issue was exhausted where the BIA sua sponte issued a “discernible substantive discussion
on the merits” of the issue, despite the petitioner’s failure to raise the issue on appeal (quot-
ing Sidabutar v. Gonzales, 503 F.3d 1116, 1122 (10th Cir. 2007))).
3
does not require proof of the intent to permanently deprive the owner of the property. See,
e.g., Commonwealth v. Goins, 867 A.2d 526, 530 (Pa. Super. Ct. 2004) (describing the
elements of theft by deception). Saillant cites older BIA decisions holding that a crime is a
CIMT only if it involves that intent. See Diaz-Lizarraga, 26 I. & N. Dec. 847, 849 (B.I.A.
2016) (“From the Board’s earliest days we have held that a theft offense categorically in-
volves moral turpitude if—and only if—it is committed with the intent to permanently
deprive an owner of property.”).2 Saillant also argues that his conviction could not be a
CIMT because he “did not have a cor[r]upt mind or intent to do ev[i]l” to the victim. Pet’r’s
Br. 12.
Saillant’s conviction forecloses the latter argument. Although Saillant pleaded nolo
contendere to the theft-by-deception charge, such a plea is a conviction for immigration
purposes. See Garcia v. Att’y Gen. of the U.S., 462 F.3d 287, 289 n.1 (3d Cir. 2006). And
a Pennsylvania conviction for theft by deception requires that the defendant acted with
intent and employed deception. See Goins, 867 A.2d at 530 (“Proof of [t]heft by
2
In Diaz-Lizarraga, however, the Board “update[d]” its understanding of a CIMT and held
that
a taking or exercise of control over another’s property without consent is
itself a potentially reprehensible act that is inherently base and contrary to
the moral duties owed between persons and to society in general, and . . .
therefore conclude[d] that such a theft offense is a crime involving moral
turpitude if it involves an intent to deprive the owner of his property either
permanently or under circumstances where the owner’s property rights are
substantially eroded.
26 I. & N. Dec. at 852–53. For the reasons below, we need not determine whether retroac-
tively applying Diaz-Lizarraga to a prior conviction would be permissible. Cf. Obeya v.
Sessions, 884 F.3d 442, 449 (2d Cir. 2018) (determining that the BIA erred by applying
the holding of Diaz-Lizarraga retroactively to find that a conviction was a CIMT).
4
[d]eception requires three elements: (1) intentionally obtaining or withholding property;
(2) property belongs to another; and (3) deception.”). We cannot look behind the convic-
tion to determine whether Saillant lacked the intent necessary for the conviction. See Hill-
ocks v. Att’y Gen. U.S., 934 F.3d 332, 338 (3d Cir. 2019) (“[T]he categorical approach
does not call for the consideration of the facts of a particular case.”).
We need not reach Saillant’s argument that a Pennsylvania theft-by-deception convic-
tion does not require proof of the intent to permanently deprive the owner of the property,
as a conviction under 18 Pa. Cons. Stat. § 3922(a) is categorically an offense involving
“fraud.” We have extensively examined section 3922(a) in the past and determined that the
statute was “bottomed on ‘fraud or deceit.’ ” See Nugent v. Ashcroft, 367 F.3d 162, 179
(3d Cir. 2004), overruled on other grounds by Al-Sharif v. U.S. Citizenship & Immigration
Servs., 734 F.3d 207 (3d Cir. 2013) (en banc).3 And “the decided cases make it plain that
crimes in which fraud was an ingredient have always been regarded as involving moral
turpitude.” Jordan v. De George, 341 U.S. 223, 232 (1951); see also Mahn v. Att’y Gen.
of the U.S., 767 F.3d 170, 173 (3d Cir. 2014) (noting that it was “undisputed” that the
petitioner’s conviction under 18 Pa. Cons. Stat. § 3922(a) constituted a CIMT).
Because Saillant is removable as charged, we will deny the petition for review. The
motion for remand is denied as moot.
3
Nugent did not involve whether the conviction was a CIMT but rather whether the con-
viction came within the “aggravated felony” definition for certain crimes involving
“fraud.” See 8 U.S.C. § 1101(a)(43)(M)(i); Nugent, 367 F.3d at 169.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-4691
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LARCARUS DOMINIQUE HOWARD,
Defendant - Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. N. Carlton Tilley, Jr., Senior District Judge. (1:04-cr-00478-NCT-1)
Submitted: April 1, 2020 Decided: April 7, 2020
Before GREGORY, Chief Judge, THACKER, Circuit Judge, and TRAXLER, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Sophia L. Harvey, LIAO HARVEY PC, Winston-Salem, North Carolina, for Appellant.
Michael Francis Joseph, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Larcarus Dominique Howard appeals the revocation of his term of supervised
release and the resulting sentence. On appeal, Howard’s attorney has filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), asserting there are no meritorious grounds
for appeal. This court notified Howard of his right to file a pro se supplemental brief, and
he has done so, raising the following issues: (1) whether his original period of supervised
release exceeded the statutory maximum, and (2) whether the Fair Sentencing Act of 2010,
Pub. L. No. 111-220, 124 Stat. 2372, and the First Step Act of 2018, Pub. L. No. 115-391,
132 Stat. 5194, reduced his statutory maximum term of supervised release. We affirm.
The district court may revoke a term of supervised release if the Government proves
by a preponderance of the evidence that the defendant violated his release conditions.
18 U.S.C. § 3583(e)(3) (2018). We review the district court’s revocation decision for
abuse of discretion and its factual findings underlying the revocation for clear error.
United States v. Padgett, 788 F.3d 370, 373 (4th Cir. 2015). We will find clear error only
if we are “left with the definite and firm conviction that a mistake was made.”
United States v. De Leon-Ramirez, 925 F.3d 177, 183 (4th Cir. 2019) (internal quotation
marks omitted). Here, Howard admitted to testing positive for cocaine on 16 occasions
and marijuana once and to not notifying his probation officer within 72 hours of being
arrested or questioned by law enforcement. We therefore conclude that the district court
did not abuse its discretion in revoking Howard’s term of supervised release.
“A district court has broad discretion when imposing a sentence upon revocation of
supervised release.” United States v. Webb, 738 F.3d 638, 640 (4th Cir. 2013). “We will
2
affirm a revocation sentence if it is within the statutory maximum and is not plainly
unreasonable.” Id. (internal quotation marks omitted). In making this determination, we
are guided by “the same procedural and substantive considerations that guide our review
of original sentences.” Padgett, 788 F.3d at 373 (brackets and internal quotation marks
omitted). We have reviewed the record and conclude that Howard’s sentence is not plainly
unreasonable.
Turning to the claims raised in Howard’s pro se brief, Howard argues that his
original period of supervised release exceeded the statutory maximum. The applicable law
here is found not in 18 U.S.C. § 3583 (2018), as Howard claims, but in Howard’s statute
of conviction, 21 U.S.C. § 841(b)(1)(C) (2018). That section provides that
“[n]otwithstanding section 3583 of title 18, any sentence imposing a term of imprisonment
under this paragraph shall, . . . if there was [a prior conviction for a felony drug offense]
impose a term of supervised release of at least 6 years in addition to” imprisonment.
Because Howard had a prior North Carolina felony drug conviction, the district court
properly determined his period of supervised release was six years to life.
Next, Howard argues that the Fair Sentencing Act and First Step Act reduced his
maximum term of supervised release. Howard pled guilty to an offense involving 3.5
grams of cocaine base. Neither the Fair Sentencing Act nor the First Step Act affects the
classification of Howard’s offense because each altered the penalties for offenses involving
five grams or more of cocaine base. Howard’s conviction was based on 21 U.S.C.
§ 841(b)(1)(C) (offenses involving less than five grams of cocaine base), and he therefore
remains subject to the supervised release provisions contained therein. Accordingly, the
3
district court’s supervised release revocation sentence is within the applicable statutory
range of three years’ imprisonment. See 18 U.S.C. § 3583(h) (2018).
In accordance with Anders, we have reviewed the record and have found no
meritorious grounds for appeal. We therefore affirm the district court’s revocation
judgment. This court requires that counsel inform Howard, in writing, of his right to
petition the Supreme Court of the United States for further review. If Howard requests that
a petition be filed, but counsel believes that such a petition would be frivolous, then counsel
may move in this court for leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on Howard. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materials before this court
and argument would not aid the decisional process.
AFFIRMED
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IN BANC
This is a divorce case. Both husband and wife seek a severance of the marital ties which they so solemnly declared were binding "until death do us *Page 323
part" only such a short time ago. A son has been born, now ten years of age. Both seek his custody. The marriage vows were exchanged at Vancouver, Washington. We intend no reflection upon our sister state to the north, but if one may judge from the cases which come to this court, where the parties see fit, for one cause or another, to leave local surroundings and friends and journey north to Vancouver to have this solemn ceremony performed, one would almost be justified in saying that such a beginning forbodes disaster. This case is no exception. Is it possible that people who take this journey do not consider their obligation binding in Oregon, or have these sacred vows so deteriorated that today they are a mere formality — a farce, if you please?
The record in this case is sordid, depressing — almost nauseating. Both charge cruelty. Let us very briefly consider these charges. The appellant, the husband, admits using physical violence upon his wife, but attempts to justify by saying she kicked him. A poor justification for a gentleman. He admits attempting to chloroform his wife while she was asleep, but again he says he wanted to make a physical examination of his wife to ascertain whether or not she had been assaulted. Appellant must certainly think the courts are very credulous.
Now let us draw the curtain a bit further and look at the other side of the house. She too makes some admissions. She admits that she has been "off to the races" at the Meadows Race Track and that she was "quite a frequenter of that place," while her husband says, and she does not deny it, that during the horse racing season she went "many nights through the week and she has been gone every week-end." She admits *Page 324
that at these races she met a gentleman friend who furnished her a pass to the races, gave her tips on the horses, and took her to Celilo Falls to buy fish; that he gave her his picture, exhibit 6, and she had her picture taken with his car, exhibit 5; and that she may have put her arms around him. She admits having some of her films developed under a fictitious name. She complains about her husband's drinking, and rightly so, but was finally compelled to admit that she likewise indulges considerably. She attempted to maintain that she had quit drinking "about four years ago" but, when confronted with a liquor permit issued to her by the Oregon Liquor Control Commission for 1943, she stultifies herself by saying that she secured it for friends. She admits calling her husband many foul names, but attempts to justify by saying "he asked for it." A poor excuse for a lady. She admits writing to her husband the following note:
"Well, kid, have your fun. Oh no, you never go out a night. I have had a swell time and I don't intend to stay home and feel sorry for myself."
When these admissions are considered, along with other charges and evidence in this record which were denied by her, she does not occupy an enviable position before the court. Moreover, respondent was not forth-right in giving her testimony. She was evasive, impudent, surly and excitable, displaying every evidence of a guilty conscience. At times it took the court and counsel for both sides to induce her to answer a simple question. As the court told her, she was not doing herself nor anyone else any good by such conduct. Now she holds out her hands in pretended innocence and asks this court to put its stamp of approval upon a decree of divorce in her favor. If we were to dispose *Page 325
of this case upon the principle of "comparative rectitude," such a course might be justified. 1 Nelson, Divorce and Annulment (2d ed.) 363, § 10.03; 17 Am. Jur. 269. Yes, both sides charged cruelty, and they both proved it. Where does that leave the parties?
The doctrine of comparative rectitude is contrary to sound public policy as enunciated by the decisions of this court. Many arguments are advanced in support thereof. It is said that, since the parties cannot agree, why continue them in lawful wedlock; that the personal liberty of each of the parties demands that these ties be severed and they be permitted to go their way rejoicing; that you can deny a divorce, but you cannot make the parties live together, or love one another, or re-establish the home; and that, even where this doctrine is repudiated in theory, it exists as a matter of fact, because most of the divorces are granted upon the default of one of the parties, and, under such circumstances, the courts never know the whole truth.
In the commercial world one is not permitted to violate his solemn compact with impunity, 12 Am. Jur. 881, 13 C.J. 627, 17 C.J.S. 930; nor is relief granted to one who breaches his covenant, either in law, 13 C.J. 725, 17 C.J.S. 1169, or in equity, 58 C.J. 1161. Why should a different rule apply where we are dealing with a sacred institution?
The personal liberty argument is based upon a misconception of the meaning of that term. In Fitzsimmons v. New York StateAthletic Commission, 146 N.Y.S. 117, the appellate court of that state said:
"`Liberty' is a word with a double meaning. In a negative sense it means freedom from restraint. In a positive sense it secures freedom by the imposition of restraint. It is in this positive sense that the state, in the exercise of its police and *Page 326
general welfare powers, promotes the freedom of all by the imposition of such restraints upon some as are deemed necessary to secure the general welfare."
Daniel Webster in a speech delivered before the South Carolina Bar Association put it this way: "Liberty exists in proportion to wholesome restraint."
Thoughtful deliberation upon these statements will impress one with the fundamental soundness thereof. Our traffic regulations, our sanitary restrictions, our pure food laws are all wholesome restraints upon us, as well as on all other members of our community. By these laws one is not permitted to drive where he pleases, or to sell what he pleases, or dispose of his garbage and sewage where he pleases. Nevertheless, by these same restraints, we may drive in comparative safety, eat pure food, and enjoy life without the stench and contamination of our neighbors' sewers and debris.
So here, if, by refusing to dissolve these bonds of matrimony and thus restraining these parties in their personal desires, society is thereby, to a small degree at least, stabilized, and, if the same restraints are placed upon other couples similarly situated, again strengthening our social fabric, that which now seems to these parties to be a deprivation of their personal liberty will in fact be an enhancement thereof. They will be privileged to live in a society where there is less crime and less juvenile delinquency, to say nothing of the more wholesome effect of perhaps a few more happy homes.
Here we are again met with the argument that you can deny a divorce to these parties, but you can't make them love one another or re-establish this broken home. Regardless of all that may be said in these fields, one thing is certain: That if a divorce is denied these *Page 327
parties and they refuse to settle their differences and effect a reconciliation, or put in order the pieces of this broken home, or straighten out their tangled skein of living, at least they cannot, either of them, go out and start another home, to crumble and fall when the storm strikes. That by itself may be a saving to society. Moreover, it is just possible that, if the courts of our land would show a disposition to be less liberal in this field, it might have a wholesome effect upon married couples in inducing them to try harder to maintain this sacred relationship.
Divorce is an ancient institution. The early biblical law of Moses permitted a Hebrew "to put away his wife by a written bill of divorcement." Deuteronomy, C. XXIV, vs. 1-4. Divorce was frequent and easy among the ancient Greeks. In ancient Rome for five hundred years there was no divorce, but toward the end of the Republic it required nothing more than the mutual consent of the spouses. In England the early ecclesiastical courts granted limited divorce, from bed and board, sparingly. Until 1857 only Parliament could give complete divorce. In the American colonies, where ecclesiastical courts were never established, jurisdiction was reserved to the Governors and Councils and later to the Legislatures of the states. From this extreme, in the United States we have now gone far toward the opposite. The pendulum has swung too far. Today there is one divorce for every three marriages. 19 Tenn. L. Rev. 930. In 1945 in four of the most populous counties of Tennessee, there were 6,738 marriages and 9,889 divorce cases. The question might well be asked: Can society maintain itself half married and half divorced?
With reference to the argument that the doctrine of comparative rectitude exists in fact where it is *Page 328
repudiated theoretically, it may be readily admitted that most divorces are obtained by default, and that the courts do not ascertain the whole truth. In fact it is reported that in Hamilton County, Tennessee, one judge granted twelve divorces in seventeen minutes. 19 Tenn. L. Rev. 930, 934. On the other hand, it should be remembered that there are three parties to every divorce case — the husband, the wife and the state. If the time has come when the courts take judicial notice that in most default divorce cases a fraud is being perpetrated on the court, it is time to call a halt even there, and require the state to become more than a perfunctory party.
In this case an American home is involved — a home welded and cemented together by the strong and weighty ties of solemn marital vows; a relationship sanctioned by God and man as the first step in stable, organized society; an American home, the keystone to the arch which supports and sustains our whole social fabric; the hallmark of righteous living. Every intendment, implication and suggestion of public policy dictates, yes, demands, that this home be restored, stabilized and maintained. The future of a child, a boy ten years of age, in involved. Statistics demonstrate that a large percentage of our mounting juvenile delinquency comes from broken homes. Public policy demands that this trend should stop, that the courts cease putting their stamp of approval upon a course of conduct that may destroy the foundation of society itself, except in those cases coming unmistakably within the purview of the law.
In the early case of Beckley v. Beckley, 23 Or. 226, 231,31 P. 470, this court said:
"To entitle one to a decree of divorce for cruel and inhuman treatment, the injured party must *Page 329
come into a court of equity free from the suspicion that he has contributed to the injury of which he complains. Divorces should not be granted by weighing the evidence and decreeing in favor of the one least guilty, where both have taken an active part in the mutual discord. Equity relieves the injured party, but not the vanquished. In the struggles for supremacy, or to vent spleen, spite, or hatred, the willing actors may fight out the battles of wedded life, but they cannot invoke the aid of equity after their own efforts have failed."
Again, in Evans v. Evans, 176 Or. 403, 419, 157 P.2d 495, this court, speaking through our present Chief Justice ROSSMAN, said:
"In another recent instance, Mauer v. Mauer, 150 Or. 130, 42 P.2d 186, this court said:
"`It may be, as the trial judge no doubt believed, that the interests of society would be best subserved by granting a divorce in this case, but it is submitted that divorces can be obtained only by the innocent party on some statutory ground. It should not be decreed on the ground of expediency, * * *.'
"In that case, the decree awarded to the wife in the circuit court was reversed."
In Hollingworth v. Hollingworth, 173 Or. 286, 292, 293,145 P.2d 466, this court, speaking through Justice BRAND, said:
"It is firmly established by the decisions of this court that he who comes into equity must come with clean hands, and that this doctrine is applicable to divorce cases. Carmichael v. Carmichael, 106 Or. 198, 211 P. 916 (1923). When the conduct of the parties is reprehensible to a kindred degree, the court ought not to interfere at the instance of either. Matlock v. Matlock, 72 Or. 330, 143 P. 1010 (1914); Crim v. Crim, 66 Or. 258, 134 P. 13 (1913); White v. White, 100 Or. 387, 190 P. 969, 197 P. 1080 *Page 330
(1921); Squires v. Squires, 115 Or. 655, 239 P. 302
(1925); Hill v. Hill, 124 Or. 364, 264 P. 447 (1928); Billion v. Billion, 124 Or. 415, 263 P. 397 (1928); Smith v. Smith, 146 Or. 600, 31 P.2d 168 (1934); Heisler v. Heisler, 152 Or. 691, 55 P.2d 727
(1936); Douglas v. Douglas, 163 Or. 689, 99 P.2d 479."
In Mueller v. Mueller, 165 Or. 153, 156, 105 P.2d 1095, this court, speaking through Justice BAILEY, said:
"The conclusion to which we are impelled is that neither party is entitled to a divorce. Both husband and wife materially contributed to the discord which prevailed in their home. The conduct of the plaintiff toward his wife and children was anything but commendable.
"We have carefully examined the entire record and are of the opinion that both the plaintiff and the defendant were in the wrong. The evidence does not preponderate decisively in favor of one or the other. Neither of them can be said to have been very slightly, and the other very greatly, at fault. Billion v. Billion, 124 Or. 415, 263 P. 397; Mauer v. Mauer, 150 Or. 130, 42 P.2d 186; Beckley v. Beckley, 23 Or. 226, 31 P. 470; Andrews v. Andrews, 162 Or. 614, 94 P.2d 300."
In Andrews v. Andrews, 162 Or. 614, 615, 94 P.2d 300, this court, speaking through Justice BELT, said:
"The mere fact that the plaintiff and the defendant seem convinced they cannot live together in peace and happiness does not justify this court in dissolving the marital relation. The parties must be left where we find them. It is hoped that common sense and righteousness may yet prevail in this disturbed household."
In Douglas v. Douglas, 163 Or. 689, 693, 99 P.2d 479, this court, speaking through Justice KELLY, said:
"The other incidents relied on by plaintiff are controverted or explained; and we concur with the *Page 331
trial court that plaintiff did not establish a cause for divorce.
"We cannot concur, however, in the conclusion that defendant established a cause of divorce. To constitute a cause for divorce on the ground of cruelty, the cruelty must be unmerited and unprovoked unless it is unjustified by the provocation and out of proportion to the offense. Subject to that rule, where both parties contribute by misconduct to marital discord, neither is entitled to a divorce. Taylor v. Taylor, 11 Or. 303, 8 P. 354; Adams v. Adams, 12 Or. 176, 6 P. 677; Wheeler v. Wheeler, 18 Or. 261, 24 P. 900; Beckley v. Beckley, 23 Or. 226, 31 P. 470; Mendelson v. Mendelson, 37 Or. 163, 61 P. 645; Jones v. Jones, 44 Or. 586, 77 P. 134; Crim v. Crim, 66 Or. 258, 134 P. 13; Matlock v. Matlock, 72 Or. 330, 143 P. 1010; Spady v. Spady, 79 Or. 421, 155 P. 169; Hengen v. Hengen, 85 Or. 155, 166 P. 525; Crumbley v. Crumbley, 94 Or. 617, 186 P. 423; White v. White, 100 Or. 387, 190 P. 969, 197 P. 1080; Hawley v. Hawley, 101 Or. 649, 199 P. 589; Kruschke v. Kruschke, 103 Or. 601, 205 P. 973; Billion v. Billion, 124 Or. 415, 263 P. 397; Thomsen v. Thomsen, 128 Or. 622, 275 P. 673; Josephson v. Josephson, 132 Or. 581, 287 P. 80."
In Claude v. Claude, 180 Or. 62, 174 P.2d 179, 186, this court, speaking through Justice LUSK, said:
"The plaintiff's association with Anderson, long continued, renewed and persisted in after the reconciliation with her husband, was, in our opinion, such marital misconduct as to constitute ground of divorce. It was the thing in fact which broke up their marriage. By comparison such fault as the believable evidence shows the defendant to have been guilty of is slight, and his provocation was great. In these circumstances we think the defendant is entitled to a decree of divorce. See Fritz v. Fritz, Or., 174 P.2d 169; Fuller v. Fuller, 175 Or. 136, 140, 151 P.2d 979; McElwee v. McElwee, 171 Or. 462, 467, 138 P.2d 208; Mueller v. Mueller, *Page 332 165 Or. 153, 156, 105 P.2d 1095; Condit v. Condit, 115 Or. 481, 237 P. 360."
In Fuller v. Fuller, 175 Or. 136, 140, 151 P.2d 979, this court, speaking through Justice HAY, said:
"We are not satisfied that the plaintiff was entirely without fault in the premises. As we read the record, she seems to have been somewhat neurotic, and very jealous of defendant. In all probability, she was not entirely well physically. We cannot say, however, that the parties were in pari delicto, or that the plaintiff's shortcomings were not justified by provocation, or were disproportionate to her treatment by the defendant, in view of the evidence to which the decision of the trial judge imputed verity. Under the circumstances, we do not feel that her faults were sufficient to debar her from relief in a court of equity. Vinson v. Vinson, 111 Or. 634, 226 P. 233; White v. White, 100 Or. 387, 190 P. 969, 197 P. 1080."
The foregoing will give a fair cross-section of the thinking of the different members of this court as now constituted.
In Hollingworth v. Hollingworth, supra, we said:
"The social wisdom of the doctrine which, because of mutual fault, continues the marriage status as a matter of law when it has necessarily ended as a matter of fact has been the subject of severe criticism in recent days, but this court is committed to the doctrine that a plaintiff cannot have relief in equity unless he comes to court with clean hands, and if it ever is to be applied in a divorce case we think it should be done here."
We hold that respondent is not before this court with clean hands, and that sound public policy adhered to by this court for many years requires that the decree entered herein be reversed. May we add in the *Page 333
language of Andrews v. Andrews, supra, "It is hoped that common sense and righteousness may yet prevail in this disturbed household."
In this case respondent has asked this court for an allowance for attorney's fees in the sum of $250 for defending this appeal. Since the appellant saw fit to appeal from the decree rendered by the trial court, it was necessary for respondent to defend the appeal. We have considered the length of the transcript of evidence, the briefs filed on behalf of respondent and the fact that the case was not orally argued in this court, but submitted upon briefs. We find that $200 would be a reasonable allowance for such purpose.
It follows from the foregoing that the decree of the lower court is reversed and that respondent's complaint as well as appellant's counterclaim are dismissed, and respondent is allowed $200 attorney's fees for defending this appeal, respondent to recover her costs and disbursements herein.
Bailey, J., concurs in the result. *Page 334
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01-03-2023
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07-06-2016
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https://www.courtlistener.com/api/rest/v3/opinions/4523263/
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[Cite as In re J.R., 2020-Ohio-1347.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
In the Matter of: :
J.R. : No. 19AP-228
(C.P.C. No. 17JU-12152)
(R.N.A., :
(REGULAR CALENDAR)
Defendant-Appellant). :
In the Matter of: :
M.A. : No. 19AP-229
(C.P.C. No. 17JU-12163)
(R.N.A., :
(REGULAR CALENDAR)
Defendant-Appellant). :
In the Matter of: :
L.J. : No. 19AP-231
(C.P.C. No. 16JU-13255)
(R.N.A., :
(REGULAR CALENDAR)
Defendant-Appellant). :
D E C I S I O N
Rendered on April 7, 2020
On brief: Yeura R. Venters, Public Defender, and George M.
Schumann, for appellant.
On brief: Robert J. McClaren, for appellee Franklin County
Children Services.
APPEALS from the Franklin County Court of Common Pleas,
Division of Domestic Relations, Juvenile Branch
SADLER, P.J.
{¶ 1} Defendant-appellant, R.N.A., mother of J.R., L.J., and M.A. (collectively "the
children"), appeals from the judgments of the Franklin County Court of Common Pleas,
Nos. 19AP-228, 19AP-229, and 19AP-231 2
Division of Domestic Relations, Juvenile Branch, terminating her parental rights and
placing the children in the permanent custody of plaintiff-appellee, Franklin County
Children Services ("FCCS"). For the following reasons, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} This case involves FCCS's request for permanent custody of J.R., born in
August 2002; L.J., born in August 2009; and M.A., born in July 2015. Appellant is the
biological mother of all three children. The alleged fathers of J.R. and M.A. and the legal
father of L.J. are not parties to this appeal.
{¶ 3} Chronic school truancy issues involving L.J. prompted FCCS to become
involved with the children and appellant in April 2016. According to the complaint filed by
FCCS for an order of temporary custody of L.J., appellant indicated to FCCS that L.J.
missed school due to L.J.'s behavioral problems and because appellant had been in jail. A
truancy division program was unsuccessfully implemented: appellant failed to appear for
any of the scheduled hearings and did not complete a mental health assessment or drug
and alcohol assessment, which were requested due to appellant's history of untreated
mental health and substance abuse issues. L.J. also did not complete an assessment related
to her behavioral issues.
{¶ 4} L.J. was placed in temporary custody of FCCS on August 23, 2016. After
custody for L.J. expired by the operation of law, FCCS refiled a complaint on November 7,
2016 alleging L.J. to be a dependent child under R.C. 2151.04(C). The complaint noted that
appellant continued to be inconsistent with her contact with the FCCS service team,
struggled with resource management, lacked phone service for several weeks, was
inconsistent about visitation with the children, and missed more than three visits despite
being provided bus passes. According to the complaint, FCCS met with appellant and the
children at the end of October and provided appellant with her case plan and referrals for
a drug screen and mental health assessment, which appellant did not complete. FCCS
received a temporary order of custody for L.J. on November 8, 2016. On January 31, 2017,
L.J. was adjudicated dependent, and FCCS received court-ordered protective supervision
on February 6, 2017 whereby L.J. returned to appellant's care. On May 23, 2017, all three
children were placed in the temporary custody of FCCS.
Nos. 19AP-228, 19AP-229, and 19AP-231 3
{¶ 5} On October 3, 2017, FCCS filed complaints for temporary custody of J.R. and
M.A. Regarding J.R., the complaint alleged J.R. to be a neglected child under R.C.
2151.03(A)(2) and (3) and a dependent child under R.C. 2151.04(C) and (D)(1) and (2). The
complaint stated that since the case opened due to L.J.'s truancy, appellant had voluntarily
agreed to work with FCCS with her other children. According to the complaint, appellant
had still not completed the mental health or drug and alcohol assessments and had
completed one out of four random drug screens; she tested positive for benzodiazepines.
Appellant reported having medical issues that prevent her from gainful employment but
had not started the process to apply for social security benefits or sought other employment
resources. Appellant was facing both an eviction case pending in Franklin County and an
active warrant on a criminal charge in Delaware County. The complaint states that J.R. did
complete an assessment but then did not follow through with the recommendations for
community-based counseling services. J.R. also faced school-filed truancy charges arising
out of his unexcused absences. FCCS expressed concern that J.R. is left to supervise and
care for his younger siblings despite having been diagnosed with mental health disorders.
{¶ 6} The complaint for temporary custody of M.A. alleged M.A. to be a neglected
child under R.C. 2151.03(A)(2) and a dependent child under R.C. 2151.04(C) and (D)(1) and
(2). The allegations in the complaint are essentially the same allegations as stated in the
complaint for temporary custody of J.R. On October 4, 2017, FCCS received temporary
custody of J.R. and M.A. Both children were adjudicated to be dependent minors;
temporary court commitment of J.R. was granted to FCCS on November 14, 2017, and
temporary court commitment of M.A. was granted to FCCS on December 8, 2017.
{¶ 7} On March 21, 2018, FCCS filed motions for permanent custody, also called
permanent court commitment ("PCC"), with respect to each child. The motions stated that
for each child, FCCS would establish R.C. 2151.414(B)(1)(a) and (b) by clear and convincing
evidence and that permanent custody is in the best interest of the children under R.C.
2151.414(D)(1). FCCS stated R.C. 2151.414(D)(2), which provides circumstances in which
the court must grant permanent custody, did not apply in these cases.
{¶ 8} According to the motions for permanent custody, appellant failed to utilize
medical, psychological, and other resources made available through the case plan, engage
in the treatment recommendations following her mental health and drug and alcohol
Nos. 19AP-228, 19AP-229, and 19AP-231 4
assessments, or demonstrate sobriety through consistently clear drug screens as she
completed just 1 of 75 random drug screens offered to her and tested positive for
benzodiazepines. According to the motions, appellant is homeless, unemployed, unable to
provide the basic needs of the children, and had an active warrant for her arrest due to a
probation violation. The motions state appellant demonstrated a lack of commitment to
the children by failing to make case plan progress or alleviating or mitigating the problems
that initially resulted in the children's removal. The motions stated the children had been
in the temporary custody of FCCS since May 23, 2017 and were in need of a legally secure
permanent placement. Specific to J.R., FCCS stated J.R. was attending school on a
consistent basis, participates in school activities, and expressed a desire to remain in his
current foster home and not reunify with appellant. Regarding M.A., FCCS stated M.A. was
demonstrating better social and verbal communication skills and was making progress on
services she had been linked to.
{¶ 9} A hearing on the permanent custody motions was held on March 18, 2019.
At the outset of the hearing, the trial court noted appellant had been served personally by a
process server in all three cases. Appearances were made by the children's court-appointed
guardian ad litem ("GAL"), a caseworker for FCCS, counsel for FCCS, counsel for appellant,
and counsel for L.J. Appellant, the legal father of L.J., and the alleged fathers of J.R. and
M.A. did not appear for the hearing. Appellant's counsel moved for a continuance to allow
her to make contact with appellant in person since she had not been able to be in touch with
appellant "in some time" due to appellant changing her address and the two phone numbers
provided for appellant no longer being in service. (Mar. 18, 2019 Tr. at 5.) The motion for
a continuance was opposed by the GAL, who cited the need to have permanency for the
children, and was ultimately denied by the trial court.
{¶ 10} FCCS then called Charlotte Wolff, the caseworker assigned for all three
children since June 2018. Wolff testified that she saw appellant in person the previous
week at a visitation and specifically discussed the permanent custody court date. Appellant
had a bus pass to attend the hearing.
{¶ 11} According to Wolff, FCCS originally became involved with the family for
educational neglect in 2016 and initially worked on a voluntary basis with appellant. That
arrangement was not successful as appellant missed court dates and scheduled home visits
Nos. 19AP-228, 19AP-229, and 19AP-231 5
and was not compliant with services obtained for the family. FCCS ultimately received
temporary custody of all three children on May 23, 2017 and the children have continuously
been in FCCS custody since that date. According to Wolff, the children were placed in
separate foster homes, and L.J. and M.A. are "doing fine" with few behavioral concerns,
while J.R. is also doing "okay" but had some behavioral concerns related to him recently
fathering a child of his own. (Tr. at 12.) Wolff testified the children do not have special
needs, but L.J. is in counseling, sees a psychiatrist, and takes related medication. According
to Wolff, if the current foster homes of the children are not adoptive home options, FCCS
would work to recruit a prospective adoptive home if the court granted permanent custody
to FCCS.
{¶ 12} Wolff testified appellant had previously been inconsistent with visiting the
children and, as a result, appellant was required to arrive one hour ahead of the scheduled
visit time. Since August 2018, appellant had been "fairly consistent" in appearing for her
weekly visitation with L.J. and M.A. at the agency. (Tr. at 31.) Wolff testified J.R. does not
attend the visits because they do not have a good relationship, and he does not trust
appellant. Wolff supervised at least one visitation per month, which took place in a room
that is monitored, and described appellant's behavior during the visits as "very
appropriate." (Tr. at 19.) Wolff testified L.J. and M.A. appear bonded with appellant and
enjoy her visits.
{¶ 13} Wolff outlined appellant's case plan objectives as follows: complete and test
negative on scheduled drug screens; complete alcohol and drug and mental health
assessments and follow all recommendations, including counseling; complete a
psychological evaluation and follow all recommendations; contact her primary care
physician for all physical ailments; engage in family counseling; and make herself available
for the caseworker service team. Wolff testified appellant completed the alcohol and drug
assessment, and a letter dated April 2017 from the organization that conducted that
assessment stated that no further services were recommended at that time in regard to
substance abuse.
{¶ 14} Wolff testified appellant also completed the mental health assessment, but
appellant's refusal to sign any releases of information, even after Wolff discussed the
importance of the releases with appellant at every visit and tried to get other people to
Nos. 19AP-228, 19AP-229, and 19AP-231 6
convince her to sign the releases, resulted in Wolff being unable to verify that appellant
participated in or completed the recommended services set by the assessment, including
counseling. According to Wolff, appellant claimed she attends mental health counseling
and gave Wolff a letter dated October 2018 purporting to confirm appellant was attending
counseling. Wolff's attempts to confirm the accuracy of this letter failed. Wolff was also
unable to verify whether appellant obtained a psychological assessment and, if so, whether
that assessment resulted in any necessary treatment or services.
{¶ 15} Wolff testified, with appellant's history, it is normal to include random drug
screens as a part of mental health treatment. According to Wolff, appellant completed one
drug screening for her in July 2018 and tested negative. Wolff stated appellant claimed she
completes drug screens and offered Wolff a "paper" that said "drug screen," but Wolff's
attempts to confirm the accuracy of the paper failed. (Tr. at 18.)
{¶ 16} Regarding the objective of appellant contacting her primary care physician,
Wolff testified appellant reports many physical disabilities, and there was a concern about
her use of prescription drugs, so an objective was designed to ensure appellant was being
medicated appropriately for her conditions. Wolff was not able to verify appellant met this
case objective.
{¶ 17} According to Wolff, appellant was not employed, and she was unable to give
Wolff a current address. Wolff testified appellant "hops around" from house to house, and
appellant told Wolff she was not allowed to visit where she was staying. (Tr. at 15.)
Appellant had never established consistent income or housing throughout the time Wolff
served as caseworker. In Wolff's opinion, appellant had not done anything to remedy the
issues that required the children to be removed from the home.
{¶ 18} Next, FCCS called Brian Furniss, the GAL for all three children since August
2016, to testify. According to Furniss, after initially being removed from appellant's home,
L.J. was returned to appellant's care. However, during a hearing, L.J.'s ear was visibly
leaking, and it was determined she had an untreated ear infection. J.R. also raised concerns
of neglect and expressed to Furniss that he spent a lot of time caring for the younger
children. All three children were removed from the home.
{¶ 19} Furniss testified he had limited contact with appellant because she was
difficult to get a hold of, so their interaction had largely been at court. He once had
Nos. 19AP-228, 19AP-229, and 19AP-231 7
attempted to do a home visit with appellant, but she would not allow him into the home.
Furniss also testified he attempted to observe appellant's visitations with the children, but
appellant had not appeared at those scheduled visits.
{¶ 20} According to Furniss, J.R. and L.J. did not really have a relationship or,
described another way, had a "strained" relationship due to J.R.'s poor relationship with
appellant. (Tr. at 43.) Although J.R. and M.A. had previously been in the same foster home,
Furniss believed J.R. was not close to M.A. due to their age separation and thought J.R.
wanted to cease serving in a parenting role with M.A. Furniss noted L.J. and M.A. had not
been placed together in foster care because L.J. was found being physically violent with
M.A., and Furniss recommended against placing them in the same home together.
{¶ 21} As for the wishes of the children, Furniss testified J.R. did not want to return
to appellant. While L.J. wanted to return to appellant, and Furniss acknowledged L.J. and
appellant were bonded, Furniss recommended against L.J.'s wish due to appellant's lack of
consistency and housing. Furniss agreed severing the bond between L.J. and appellant
would affect L.J. in the short term but believed L.J. needed permanency, rather than being
"dragged along with * * * what seems to be false hope." (Tr. at 46.) Furniss testified M.A.
could not articulate her wishes due to her young age, lack of understanding of the concept
of permanency, and special needs and development interventions. Furniss testified to
appellant being less stable than she had been when the children were removed. Overall,
appellant had no stability in terms of housing, had mental health concerns, and was not in
a position to parent M.A. or L.J. Furniss recommended PCC for all three children.
{¶ 22} No additional witnesses were called by any party. Appellant's attorney
offered one exhibit—the letter verifying the alcohol and drug assessment—which was
admitted without objection.
{¶ 23} On March 27, 2019, the trial court issued a decision and judgment entry in
favor of FCCS. The trial court first found by clear and convincing evidence that, pursuant
to R.C. 2151.414(B)(1)(b), the children were abandoned by their respective alleged or legal
fathers. As an alternative, the trial court found clear and convincing evidence showed that,
pursuant to R.C. 2151.414(B)(1)(a) and (E), the children cannot be placed with their parents
within a reasonable amount of time. In doing so, the trial court found evidence supported
the existence of R.C. 2151.414(E)(1), (2), (4), (14), and (16).
Nos. 19AP-228, 19AP-229, and 19AP-231 8
{¶ 24} Having found R.C. 2151.414(B)(1)(a) and (b) applied, the trial court
considered the factors listed in R.C. 2151.414(D) and whether granting permanent custody
to FCCS was in the best interest of the children. Based on the testimony and evidence
presented at the hearing and the entire case file for each child, the trial court found clear
and convincing evidence demonstrated PCC is in the children's best interest. Therefore,
the trial court granted FCCS's motion for PCC and terminated the parental rights of
appellant, the alleged fathers of M.A. and J.R., and the legal father of L.J.
{¶ 25} Appellant filed a timely appeal.
II. ASSIGNMENT OF ERROR
{¶ 26} Appellant assigns the following as trial court error:
The juvenile court's judgment granting permanent court
commitment of the minor children to Franklin County
Children Services is against the manifest weight of the
evidence.
III. STANDARD OF REVIEW
{¶ 27} In reviewing a manifest weight challenge to a juvenile court's judgment
granting PCC, an appellate court employs the following standard of review:
A trial court's determination in a PCC case will not be reversed
on appeal unless it is against the manifest weight of the
evidence. In reviewing a judgment granting permanent
custody to FCCS under the manifest weight standard, an
appellate court must make every reasonable presumption in
favor of the judgment and the trial court's findings of facts. If
the evidence is susceptible of more than one construction, we
must give it that interpretation which is consistent with the
verdict and judgment, most favorable to sustaining the
juvenile court's verdict and judgment. An appellate court will
not overturn a permanent custody order when it is supported
by competent, credible evidence.
(Internal citations and quotations omitted.) In re E.B., 10th Dist. No. 16AP-352, 2017-
Ohio-2672, ¶ 19.
IV. LEGAL ANALYSIS
{¶ 28} Appellant argues the trial court's judgments granting FCCS permanent
custody of the children is against the manifest weight of the evidence. We disagree.
{¶ 29} "Parents have a constitutionally-protected fundamental interest in the care,
custody, and management of their children." In re H.D., 10th Dist. No. 13AP-707, 2014-
Nos. 19AP-228, 19AP-229, and 19AP-231 9
Ohio-228, ¶ 10, citing Troxel v. Granville, 530 U.S. 57, 65 (2000). "The Supreme Court of
Ohio has recognized the essential and basic rights of a parent to raise his or her child." In
re H.D. at ¶ 10, citing In re Murray, 52 Ohio St.3d 155, 157 (1990). "These rights, however,
are not absolute, and a parent's natural rights are always subject to the ultimate welfare of
the child." In re H.D. at ¶ 10, citing In re Cunningham, 59 Ohio St.2d 100, 106 (1979).
"Thus, in certain circumstances, the state may terminate the parental rights of natural
parents when it is in the best interest of the child." In re H.D. at ¶ 10, citing In re E.G., 10th
Dist. No. 07AP-26, 2007-Ohio-3658, ¶ 8, citing In re Harmon, 4th Dist. No. 00 CA 2694
(Sept. 25, 2000).
{¶ 30} "A decision to award permanent custody requires the trial court to take a two-
step approach." In re K.L., 10th Dist. No. 13AP-218, 2013-Ohio-3499, ¶ 18. A trial court
must first determine if any of the factors set forth in R.C. 2151.414(B)(1) apply and then
determine whether a grant of permanent custody to FCCS is in the best interest of the child.
Id.; In re H.D. at ¶ 16; R.C. 2151.414(B)(1). In this case, appellant only challenges the second
step, arguing the trial court's determination that PCC was in the children's best interest is
against the manifest weight of the evidence.
{¶ 31} With respect to determining the best interest of a child, the trial court must
consider all relevant factors including, but not limited to, the following:
(a) The interaction and interrelationship of the child with the
child’s parents, siblings, relatives, foster caregivers and out-
of-home providers, and any other person who may
significantly affect the child;
(b) The wishes of the child, as expressed directly by the child
or through the child’s guardian ad litem, with due regard for
the maturity of the child;
(c) The custodial history of the child, including whether the
child has been in the temporary custody of one or more public
children services agencies or private child placing agencies for
twelve or more months of a consecutive twenty-two-month
period, or the child has been in the temporary custody of one
or more public children services agencies or private child
placing agencies for twelve or more months of a consecutive
twenty-two-month period and, as described in division (D)(1)
of section 2151.413 of the Revised Code, the child was
previously in the temporary custody of an equivalent agency
in another state;
Nos. 19AP-228, 19AP-229, and 19AP-231 10
(d) The child's need for a legally secure permanent placement
and whether that type of placement can be achieved without a
grant of permanent custody to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) of this
section apply in relation to the parents and child.
R.C. 2151.414(D)(1). The factors listed in R.C. 2151.414(E)(7) through (11) are:
(7) The parent has been convicted of or pleaded guilty to one
of [several listed offenses];
(8) The parent has repeatedly withheld medical treatment or
food from the child when the parent has the means to provide
the treatment or food, and, in the case of withheld medical
treatment, the parent withheld it for a purpose other than to
treat the physical or mental illness or defect of the child by
spiritual means through prayer alone in accordance with the
tenets of a recognized religious body.
(9) The parent has placed the child at substantial risk of harm
two or more times due to alcohol or drug abuse and has
rejected treatment two or more times or refused to participate
in further treatment two or more times after a case plan issued
pursuant to section 2151.412 of the Revised Code requiring
treatment of the parent was journalized as part of a
dispositional order issued with respect to the child or an order
was issued by any other court requiring treatment of the
parent.
(10) The parent has abandoned the child.
(11) The parent has had parental rights involuntarily
terminated with respect to a sibling of the child pursuant to
this section or section 2151.353 or 2151.415 of the Revised
Code, or under an existing or former law of this state, any
other state, or the United States that is substantially
equivalent to those sections, and the parent has failed to
provide clear and convincing evidence to prove that,
notwithstanding the prior termination, the parent can provide
a legally secure permanent placement and adequate care for
the health, welfare, and safety of the child.
"The burden of proof falls upon FCCS to prove by clear and convincing evidence that an
award of permanent custody is in the child's best interest." In re K.L. at ¶ 20; R.C.
2151.414(B)(1). "Clear and convincing evidence is that degree of proof that will produce in
the mind of the trier of fact a firm belief or conviction as to the facts to be established." In
re N.L., 10th Dist. No. 19AP-397, 2020-Ohio-166, ¶ 19, citing Cross v. Ledford, 161 Ohio St.
469 (1954), paragraph three of the syllabus. "It is more than a mere preponderance of the
Nos. 19AP-228, 19AP-229, and 19AP-231 11
evidence but does not require proof beyond a reasonable doubt." In re N.L. at ¶ 19, citing
Cross at paragraph three of the syllabus.
{¶ 32} Here, though the juvenile court did not specify which of the factors set forth
in R.C. 2151.414(D)(1)(a) through (e) favored PCC, the juvenile court's decision and the
evidence in the record support the trial court's decision in favor of PCC. See In re M.D.,
10th Dist. No. 18AP-786, 2019-Ohio-3674, ¶ 54 (affirming trial court determination of PCC
despite trial court not specifying how R.C. 2151.414(D)(1) factors were weighed). Because
only appellant appealed the trial court's judgments, we will focus our review of the record
and trial court findings to those relevant to appellant.
A. R.C. 2151.414(D)(1)(a)
{¶ 33} Subsection (a) requires the juvenile court to consider the interaction and
interrelationship of the children with their parents, siblings, relatives, foster caregivers and
out-of-home providers, and any other person who may significantly affect the child. The
trial court found that appellant, L.J., and M.A. share a bond, that L.J. wants to reunify with
appellant, and that appellant's visits with the younger children generally go well. Regarding
J.R., the trial court found appellant and J.R. do not have a good relationship, and J.R. does
not wish to be reunified with appellant. Furthermore, the trial court found the GAL's
testimony established that J.R. and L.J. have a very strained relationship, J.R. and M.A. are
bonded but are not close due to their age separation, and L.J. and M.A. are not placed
together because L.J. tried to physically harm M.A. The trial court noted J.R. is ready to
move on with his life and no longer wants to parent M.A., which is at least part of the reason
he previously missed so much school while in appellant's care.
B. R.C. 2151.414(D)(1)(b)
{¶ 34} Subsection (b) requires the juvenile court to consider the wishes of the child,
as expressed directly by the child or through the child's GAL, with due regard for the
maturity of the child. The trial court determined that the GAL testified that M.A. cannot
express her wishes due to her age, but J.R. and L.J. can clearly articulate their wishes and
are split on their views: L.J. would like to be reunited with appellant, while J.R. does not.
The trial court found the GAL, who had been appointed to the case since "the very
beginning," recommended PCC be granted despite L.J.'s wishes. The trial court noted the
GAL's testimony that reunification of L.J. with appellant had previously failed, that
Nos. 19AP-228, 19AP-229, and 19AP-231 12
appellant was even less stable than she had been on March 23, 2017, and that the children
needed a legally secure placement. (Mar. 27, 2019 Decision at 7.)
C. R.C. 2151.414(D)(1)(c)
{¶ 35} Subsection (c) requires the juvenile court to consider the custodial history of
the child. The trial court found all three children had been in the uninterrupted custody
and care of FCCS since May 23, 2017. The trial court noted FCCS filed its motion for
permanent custody prior to the children being in FCCS's custody for 12 or more consecutive
months in a 22-month period and, therefore, did not seek custody on that basis under R.C.
2151.414(B)(1)(d). However, the trial court noted the length of time the children have been
under FCCS's care remains a relevant best-interest factor.
D. R.C. 2151.414(D)(1)(d)
{¶ 36} Subsection (d) requires the juvenile court to consider the children's need for
a legally secure permanent placement and whether that type of placement can be achieved
without a grant of permanent custody to the agency. The trial court found appellant "has
failed to substantially remedy the causes for the children's removal by failing to complete
the case plan," which, as it had noted earlier in the decision, occurred despite FCCS's
reasonable and diligent case planning and efforts to prevent the removal of the children
from her home. (Decision at 8.) The trial court observed that appellant did not appear for
the hearing. The trial court found no relatives are available for placement and/or custody
of the children but remarked that a cousin who came forward for the first time one week
prior to the hearing, but who did not file a motion, could apply to adopt the children if truly
interested. Finally, the trial court found the children are in need of a legally secure
placement, which cannot be achieved without a grant of permanent custody to FCCS.
E. R.C. 2151.414(D)(1)(e)
{¶ 37} Subsection (e) asks whether any of the factors in divisions (E)(7) through (11)
apply. The trial court found R.C. 2151.414(E)(10), which asks whether the child is
abandoned, to be applicable to all three fathers. This factor is inapplicable to appellant on
this record.
Nos. 19AP-228, 19AP-229, and 19AP-231 13
F. PCC Is In The Best Interest Of J.R., L.J., and M.A.
{¶ 38} While appellant does not cite to specific parts of the Revised Code,
appellant appears to challenge R.C. 2151.414(D)(1)(a), (b), and (d). Pertinent to R.C.
2151.414(D)(1)(a), appellant argues the evidence clearly showed both L.J. and M.A. were
bonded with appellant, appellant visited L.J. and M.A. on a consistent, weekly basis, and
appellant behaved appropriately with the children on those visits. Relevant to R.C.
2151.414(D)(1)(b), appellant notes the evidence showed L.J. wanted to return to appellant's
care. Appellant further argues, presumably in reference to R.C. 2151.414(D)(1)(d), that no
evidence showed that FCCS could ever provide permanency for any of the children but,
instead, the evidence showed the children had been placed in separate foster homes, had
been in more than one foster home while in FCCS custody, and none of the homes were
prospective adoptive placements. According to appellant, the evidence supports the
conclusion that L.J. "will likely remain in foster care, without real permanency, until she is
emancipated," and this scenario "cannot be in her best interest." (Appellant's Brief at 11.)
{¶ 39} FCCS agrees that the evidence shows L.J. and M.A. are bonded to appellant
and that appellant interacted appropriately at the visits she attended. However, FCCS adds
the evidence also showed: J.R. is not bonded to appellant and expressed his desire to not
be placed with appellant; the GAL recommended the trial court grant FCCS's motion for all
the children due to appellant's lack of consistency and housing; the custodial history factor
under R.C. 2151.414(D)(1)(c) weighs in favor of permanent custody; and the evidence
established appellant is not a secure placement for the children under R.C.
2151.414(D)(1)(d) considering appellant had no verified housing and employment and did
not substantially comply with the case plan. According to FCCS, these additional factors
show placement with appellant is not safe or adequate for the children's needs, which
outweighs the bond M.A. and L.J. have with appellant. FCCS notes, while the likelihood of
adoption may be considered in determining the best interest of the child, the permanent
custody statute does not require FCCS to prove a permanent home or adoption is likely.
{¶ 40} Having reviewed the record of this case, we agree with FCCS. It is undisputed
L.J. wishes to return to appellant, there is a bond between appellant and the two younger
children, and appellant behaved appropriately with the two younger children during
supervised visitation at FCCS, which she attended "fairly consistent[ly]." (Tr. at 31.)
Nos. 19AP-228, 19AP-229, and 19AP-231 14
However, competent, credible evidence, particularly appellant's failure to complete her
case plan and inability to secure and retain demonstrably safe housing for the children,
supports the trial court's decision that PCC is in the best interest of the children. In re
M.L.J., 10th Dist. No. 04AP-152, 2004-Ohio-4358, ¶ 8 (holding non-compliance with the
case plan is a ground for termination of parental rights); In re M.D., 2019-Ohio-3674, at
¶ 55 (citing some progress on case plan without completion of the case plan as basis to
support trial court's conclusion that PCC is in the best interest of a child). See also In re
T.M., 10th Dist. No. 18AP-943, 2020-Ohio-815, ¶ 25 ("Although mother has had relatively
stable employment, steadily worked toward her case-plan objectives, maintained a bond
with the children, and made efforts to stay updated on the children's special needs, these
positive actions are unfortunately in vain given her inability to provide a safe and stable
home for the children.").
{¶ 41} First, though appellant made some progress on the case plan, including
completing a drug and alcohol and mental health assessment, appellant did not complete
the case plan. Specifically, the record shows appellant has a history of mental health
concerns, but the caseworker was not able to confirm that appellant followed up with
recommendations issued from the mental health assessment or that appellant completed a
psychological assessment and followed through with any related recommendations or
treatment. Appellant also only completed one drug screen during the caseworker's tenure
and did not complete the case plan objective of meeting with her primary care physician,
which related to concerns about appellant's use of prescription drugs. Appellant's refusal
to permit the release of information greatly complicated the caseworker's ability to confirm
appellant's completion of the case plan.
{¶ 42} Second, the record shows appellant has, both historically and at the time of
the hearing, failed to secure stable housing and hindered inspection of places she lived. The
caseworker and GAL testified appellant consistently lacked secure housing, did not permit
them to observe places where she lived, and generally was difficult to locate and contact.
When the children did live with appellant, the record evidenced ongoing neglect. The GAL
testified in the period that L.J. was returned to appellant's care, she suffered from an
observable medical condition that was left untreated; J.R. also spoke about having to
assume an unwanted parenting role of M.A.
Nos. 19AP-228, 19AP-229, and 19AP-231 15
{¶ 43} Furthermore, the children have been in the custody of FCCS since May 23,
2017 and were generally doing "fine" in foster care. (Tr. at 12.) Although evidence was not
presented by FCCS that the children's respective foster homes were potential adoptive
placements, the lack of a likely adoption does not preclude a trial court from finding that
an award of permanent custody is in the children's best interest. In re V.B.-S., 10th Dist.
No. 13AP-478, 2013-Ohio-5448, ¶ 51 (finding that, while the likelihood that a child will be
adopted may be considered in determining the child's best interest, "the statutes governing
permanent custody simply do not require an agency to prove that adoption is likely"). The
caseworker also testified if FCCS obtained permanent custody, it would work to secure such
an adoption for each child, and the trial court noted that a cousin of the children, who
appeared shortly prior to the hearing to express an interest in custody of the children, could
apply to adopt the children if she was interested in doing so once FCCS had permanent
custody.
{¶ 44} Finally, on this record, to find against PCC, the juvenile court would have had
to disregard the unequivocal recommendation in favor of PCC made by the GAL, a person
who had worked with the family since August 2016. It is significant that the GAL
considered appellant less stable than she had been when the children were removed from
her care in 2017.
{¶ 45} Considering all the above, we find the trial court judgments are supported by
competent, credible evidence and, therefore, the judgments are not against the manifest
weight of the evidence. In re E.B., 2017-Ohio-2672, at ¶ 19. Consequently, appellant's
assignment of error lacks merit.
{¶ 46} Accordingly, appellant's sole assignment of error is overruled.
V. CONCLUSION
{¶ 47} Having overruled appellant's sole assignment of error, we affirm the
judgments of the Franklin County Court of Common Pleas, Division of Domestic Relations,
Juvenile Branch.
Judgments affirmed.
KLATT and BRUNNER, JJ., concur.
_____________
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01-03-2023
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04-07-2020
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https://www.courtlistener.com/api/rest/v3/opinions/4523264/
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[Cite as Evans v. Ohio Dept. of Rehab. & Corr., 2020-Ohio-1345.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
William H. Evans, Jr., :
Plaintiff-Appellant, :
No. 19AP-478
v. : (Ct. of Cl. No. 2019-00451JD)
Ohio Department of Rehabilitation and : (REGULAR CALENDAR)
Correction,
:
Defendant-Appellee.
D E C I S I O N
Rendered on April 7, 2020
On brief: William H. Evans, Jr., pro se.
On brief: Dave Yost, Attorney General, and Timothy M.
Miller, for appellee.
APPEAL from the Court of Claims of Ohio
BEATTY BLUNT, J.
{¶ 1} Plaintiff-appellant, William H. Evans, Jr., appeals from an entry of the Court
of Claims of Ohio granting the motion to dismiss of defendant-appellee, Ohio Department
of Rehabilitation and Correction ("ODRC"). For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} The facts of the instant matter are not in dispute. Evans is an inmate in the
custody and control of ODRC at the Northeast Ohio Correctional Center. On April 3, 2019,
Evans filed a complaint in the Court of Claims in which he asserted a claim for violation of
42 U.S.C. 12101 et seq., otherwise known as the Americans with Disabilities Act ("ADA").
The complaint alleges Evans has a mental impairment in the form of "Bi-Polar Affective
Disorder I" and ODRC should accommodate this disability by designating his status as
No. 19AP-478 2
"cell-alone" and assigning him to a single-person cell. (Compl. at ¶ 1.) In alleging he has
"Bi-Polar Affective Disorder I," Evans references a mental health treatment plan attached
to the complaint. Evans alleges the treatment plan, coupled with the fact he has been
receiving Social Security Disability payments for several years, are conclusive evidence he
has a disability as recognized under the ADA. (Compl. At ¶ 1.) Evans also alleges "he is
treated differently than other inmates with a 'qualified disability,' such as inmates in a
wheelchair, or those deemed dangerous due to mental illness" because they all "can be
accorded a 'cell-alone' status." (Compl. at ¶ 2.)
{¶ 3} Evans further alleges "he is being excluded or denied benefits of [activities],
being 'major life activities.' " (Compl. at ¶ 3.) He explains that "[b]y giving Evans a cell-
mate, it causes Evans to be denied his adequate sleep, being able to concentrate and read
and think." (Compl. At ¶ 3.) Therefore, Evans alleges, ODRC has failed to reasonably
accommodate his disability.
{¶ 4} Evans seeks a declaratory judgment stating ODRC must accommodate his
request to be designated as a "cell-alone" inmate, an injunction requiring the "cell-alone"
designation be continued, and damages in excess of $25,000 as compensation for his claim.
(Compl. at ¶ 4.)
{¶ 5} ODRC responded to Evans' complaint with a May 2, 2019 motion to dismiss,
arguing the Court of Claims should dismiss the complaint in its entirety pursuant to Civ.R.
12(B)(6). Evans filed a memorandum contra ODRC's motion to dismiss on May 10, 2019.
{¶ 6} In a July 11, 2019 entry, the Court of Claims granted ODRC's motion to
dismiss based on Evans' failure to plead all the essential elements required to establish a
violation of the ADA. More specifically, the court found Evans' complaint failed to allege
ODRC denied him a reasonable accommodation and he had requested such an
accommodation. The Court of Claims further found Evans' complaint failed to allege ODRC
discriminated against him because of his disability or that he was denied the opportunity
to participate in or benefit from ODRC's services, programs, or activities, which are
requisite elements to state a claim for violation of Title II of the ADA. Thus, the court
dismissed Evans' complaint in its entirety for failure to state a claim for relief pursuant to
Civ.R. 12(B)(6). Evans timely appeals.
No. 19AP-478 3
II. Assignments of Error
{¶ 7} Evans assigns two errors for our review:
[1.] Trial court errs in holding Evans failed to request accommodation
under ADA.
[2.] Trial court errs in holding that Evans failed to allege that
he was discriminated against.
III. Discussion and Legal Analysis
A. Standard of Review
{¶ 8} When reviewing a decision on a Civ.R. 12(B)(6) motion to dismiss for failure
to state a claim upon which relief can be granted, this court's standard of review is de novo.
Foreman v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 14AP-15, 2014-Ohio-2793, ¶ 9. A
Civ.R. 12(B)(6) motion to dismiss tests the sufficiency of the complaint. O'Brien v. Univ.
Community Tenants Union, Inc., 42 Ohio St.2d 242, 245 (1975). In ruling on a motion to
dismiss pursuant to Civ.R. 12(B)(6), the court must construe the complaint in the light most
favorable to the plaintiff, presume all factual allegations in the complaint are true, and make
all reasonable inferences in favor of the plaintiff. Mitchell v. Lawson Milk Co., 40 Ohio
St.3d 190, 192 (1988). Unsupported conclusions of a complaint, however, are insufficient
to withstand a motion to dismiss. Id. at 193. The dismissal of a complaint for failure to
state a claim is proper when it appears, beyond doubt, the plaintiff can prove no set of facts
entitling him to relief. O'Brien at 245. Finally, although the trial court may not rely on
evidence outside the complaint, it may take into consideration both the complaint and any
attachments to it. Smith v. Estate of Knight, 10th Dist. No. 18AP-534, 2019-Ohio-560, ¶ 7;
Beard v. New York Life Ins. & Annuity Corp., 10th Dist. No. 12AP-977, 2013-Ohio-3700,
¶ 11.
B. Title II of the ADA—42 U.S.C. 12132 et seq.
{¶ 9} Title II of the ADA applies to state prisons and prisoners, and thus, prisons
cannot use an inmate's disability as a reason to bar that inmate from participating in or
receiving the benefits of recreation, medical services, educational programs, or vocational
programs. Wolfe v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 11AP-346, 2011-Ohio-
6825, ¶ 14, citing Pennsylvania Dept. of Corr. v. Yeskey, 524 U.S. 206, 209-10 (1998).
Further, Title II requires public entities, including prisons, "to make reasonable
No. 19AP-478 4
accommodations to enable disabled individuals to receive meaningful access to the
services, programs, or activities that the public entities offer." (Citations omitted.) Wolfe
at ¶ 15.
{¶ 10} To prevail on a claim brought under Title II of the ADA, a plaintiff must
show: "(1) that he or she is a qualified individual with a disability; (2) the defendant is
subject to the ADA; and (3) the plaintiff was denied the opportunity to participate or
benefit from defendants' services, programs, or activities or was otherwise discriminated
against by defendants, by reason of plaintiff's disability." Wolfe at ¶ 16, citing Franks v.
Ohio Dept. of Rehab. & Corr., 195 Ohio App.3d 114, 2011-Ohio-2048 (10th
Dist.); Thomson v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 09AP-782, 2010-Ohio-
416. Further, in order to demonstrate discrimination based on disability, a plaintiff must
show ODRC denied him a reasonable accommodation and he requested such an
accommodation. Thomson at ¶ 26; Wolfe at ¶ 16.
C. Appellant's Second Assignment of Error
{¶ 11} Because we find it dispositive to resolving this appeal, we begin by
addressing appellant's second assignment of error. In his second assignment of error,
Evans asserts the Court of Claims erred in finding he failed to allege he was discriminated
against. Following our de novo review of the complaint, however, we agree with the court
that Evans failed to allege in his complaint he has been prevented from participating in a
service, program, or activity because of ODRC's failure to assign him to cell-alone status.
We further agree with the Court of Claims that Evans' failure to allege he has been
precluded from participating in a service, program or activity is dispositive of Evans' claim
for violation of Title II of the ADA. Wolfe at ¶ 16.
{¶ 12} Evans has alleged he cannot get adequate sleep, concentrate, read, or think
when sharing a cell with another inmate. Yet, as the Court of Claims found, these
allegations are insufficient to demonstrate Evans has been denied participation in a
program or activity because sleeping, concentrating, reading, and thinking are not
programs or activities. See Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir.1996) (finding
that "incarceration, which requires the provision of a place to sleep, is not a 'program' or
'activity' " as contemplated by Title II of the ADA, and further that "[s]leeping in one's cell
is not a 'program' or 'activity' " under the ADA); Thomas v. Pennsylvania Dept. of Corr.,
No. 19AP-478 5
615 F.Supp.2d 411, 427 (holding that "using the toilet, sink and shower facilities or being
able to dress oneself, are not programs or activities as contemplated by Title II of the ADA
any more than sleeping is").
{¶ 13} In Thomas, the plaintiff was an above-the-knee amputee inmate who brought
suit against the prison where he was incarcerated for an alleged violation of Title II of the
ADA based on the prison's refusal to assign him to a handicap cell. The court, citing
favorably to Bowers v. Natl. Collegiate Athletics Assn., 475 F.3d 524, 553 (3d Cir.2007),
fn.32, found the plaintiff "has not alleged that he has been precluded from participating in
a service, program, or activity because of defendants' failure to accommodate him with a
handicap cell. Rather, the plaintiff alleges that, by denying his request for
accommodation, i.e., a handicap cell, defendants have failed to attend to his medical needs.
Defendants' alleged failure to attend to his medical needs, however, fails to state a claim
under Title II of the ADA." Thomas at 426.
{¶ 14} Similarly, in this case, sleeping, thinking, reading, and concentrating are not
programs or activities as contemplated by Title II of the ADA. As the Court of Claims
determined, at best Evans has alleged ODRC failed to attend to his medical needs because
of its failure to assign him to "cell-alone." Such allegations are insufficient to state a claim
for violation of Title II of the ADA. See Bryant at 249; Thomas at 427. Therefore, we find
the Court of Claims did not err in finding Evans failed to allege he was discriminated
against, and the court properly granted ODRC's motion to dismiss Evans' complaint
pursuant to Civ.R. 12(B)(6).
{¶ 15} Accordingly, we overrule appellant's second assignment of error.
D. Appellant's First Assignment of Error
{¶ 16} In his first assignment of error, Evans asserts the Court of Claims erred in
finding he failed to request an accommodation under the ADA. We previously found in
addressing the second assignment of error the Court of Claims properly granted ODRC's
motion to dismiss Evans' complaint pursuant to Civ.R. 12(B)(6). Therefore, due to our
resolution of the second assignment of error, we find appellant's first assignment of error
to be moot. App.R. 12(A)(1)(c).
No. 19AP-478 6
IV. Disposition
{¶ 17} For the foregoing reasons, the Court of Claims did not err in granting ODRC's
motion to dismiss pursuant to Civ.R. 12(B)(6). Having overruled Evans' second assignment
of error and determined his first assignment of error is moot, we affirm the judgment of the
Court of Claims of Ohio.
Judgment affirmed.
KLATT and NELSON, JJ., concur.
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01-03-2023
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04-07-2020
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Writ of error dismissed on motion of the Attorney General.
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01-03-2023
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07-05-2016
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https://www.courtlistener.com/api/rest/v3/opinions/1973783/
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320 Md. 571 (1990)
578 A.2d 1196
ATTORNEY GRIEVANCE COMMISSION OF MARYLAND
v.
JOSEPH BENSON HARLAN AND JAC EDWARD KNUST.
Misc. Docket (Subtitle BV), No. 17, September Term, 1989.
Court of Appeals of Maryland.
September 12, 1990.
Motion for Reconsideration Denied October 25, 1990.
Robert P. Conrad, Asst. Bar Counsel, for the Attorney Grievance Comm'n of Maryland, for petitioner.
Philip M. Andrews, Baltimore, for respondent.
Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS[*] and CHASANOW, JJ.
RODOWSKY, Judge.
This bar disciplinary matter concerns a disbursement by the Respondents for their client, out of funds recovered in a tort action, to a creditor of the client. Respondents requested, received and retained a "fee" of one-third of the disbursement, without the knowledge or consent of the client.
The Attorney Grievance Commission filed charges against Joseph B. Harlan (Harlan) and Jac E. Knust (Knust), alleging violations of DR 1-102(A)(4), DR 2-106(A), DR 5-101(A), DR 5-107(A)(1) and DR 7-101(A)(1) and (3). See former Maryland Rule 1230, Appendix F, Code of Professional Responsibility, which governed conduct prior to January 1, 1987.[1] We referred the charges to Judge Leonard S. Jacobson of the Circuit Court for Baltimore County for hearing and report. Counsel for the parties furnished Judge Jacobson with a written stipulation of facts and also filed in the record for Judge Jacobson's consideration the transcript of the hearing before the inquiry panel. See Maryland Rules, Ch. 1100, Subtitle BV, Rule BV6 d. The Respondents also produced seven character witnesses. Judge Jacobson reported to this Court as his findings of fact the stipulation of facts filed with him by counsel. Based on those findings, Judge Jacobson concluded, as a matter of law, that Respondents violated DR 5-107 but that they had not committed any of the other violations charged.
Respondents take no exception to the report. Bar Counsel excepts to the failure to find violation of Disciplinary Rules 2-106, 5-101 and 7-101. Bar Counsel has not excepted to the failure to find a violation of DR 1-102.
In setting forth the facts of this matter, we shall supplement material contained in the stipulation of counsel with additional facts from the transcript of proceedings before the inquiry panel. We do so because Respondents acknowledge that the transcript was provided to Judge Jacobson for his consideration. The stipulation of facts was apparently a courtesy to Judge Jacobson and not a limitation on the facts available for his consideration and for our review. Further, Judge Jacobson had no opportunity to evaluate the demeanor and credibility of fact witnesses.
Respondents' client was Frank Getson (Getson). Getson's formal education ended during the tenth grade. He was forty years old in March 1989, at the time of the inquiry panel hearing. Perhaps a decade earlier Getson had been employed by an importer of foreign motor vehicles in the port of Baltimore. While driving one of his employer's vehicles, in order to move it from one location to another on a large, open-air, storage area or parking lot, Getson collided with another vehicle owned by his employer and operated by his co-employee, Rose Robinette (Robinette). The arrangement of the lanes on the storage lot was such that Robinette was traveling on the "boulevard" and Getson was traveling on the "unfavored street." Getson has consistently maintained, almost to the point of fixation, that the accident was Robinette's fault. He maintains that his speed was approximately fifteen miles per hour, and that Robinette hit him while she was traveling about sixty miles per hour.
The employer's workers' compensation carrier, Hartford Accident & Indemnity Company (Hartford), paid Robinette a substantial amount in workers' compensation. Robinette then sued Getson for damages for injuries sustained in the motor vehicle accident. Robinette's attorney was William J. Blondell, Jr., Esq. (Blondell). Md.Code (1957, 1985 Repl. Vol.), Art. 101, § 58 in general requires a worker to reimburse the insurer, out of any recovery in a third party action, the workers' compensation paid to the worker. The parties have referred to Hartford's interest in any recovery by Robinette from Getson as the compensation "lien" or as Hartford's subrogation interest. It appears that Hartford did not employ its own counsel, in addition to Robinette's counsel, Blondell, to protect its subrogation interest in the action against Getson. Thus, Blondell would ordinarily be entitled to a fee from Hartford, based on the amount recovered by Hartford in Robinette's (and Hartford's) action against Getson. See Collins v. United Pacific Ins. Co., 315 Md. 141, 553 A.2d 707 (1989).
Getson had no automobile liability insurance. He engaged William Littleton, Esq. to represent him but a default judgment was entered against Getson. After an inquisition, which Getson apparently attended unrepresented, damages were fixed at $73,000.
Getson thereafter, on the recommendation of his then wife, consulted with Knust. At that time, and until January 1, 1985, Knust practiced in partnership with Harlan. Knust maintained an office in Ellicott City, while Harlan maintained an office in Baltimore City. Respondents undertook to represent Getson in a claim against Littleton for legal malpractice. A written retainer and fee agreement, dated January 21, 1983, was executed. It provided for a contingent fee of fifty percent, apparently to be calculated on the gross recovery.[2] The action against Littleton required proving that he had failed competently to represent Getson and that, had the duty been performed competently, the result of the Robinette case would have been favorable to Getson.
At some time in 1984 a representative of Hartford, Sandy Kelly, learned, quite possibly from Blondell, that Knust was representing Getson. She telephoned Knust, authorized Respondents to protect Hartford's interest, and authorized an attorney's fee to Respondents with respect to any sums recovered. Knust replied that he would have to discuss the proposal with Harlan. Knust sent Harlan a memorandum describing the conversation, but Respondents did not then accept the proposal. Nor did they discuss it until after Getson's action against Littleton produced a recovery.
Harlan became more active in representing Getson as discovery was undertaken, and he was clearly lead counsel. Hartford had conducted an investigation of the Robinette-Getson accident, and Harlan obtained from Hartford the report of that investigation. The stipulation says that "Hartford's investigative report was crucial to the success of Mr. Getson's claim against Mr. Littleton," but it does not explain how the report was "crucial."[3]
Sometime in the fall of 1985, Getson's action against Littleton was tried to a jury presided over by Judge Joseph F. Murphy, Jr. in the Circuit Court for Baltimore County. Judge Murphy, testifying for the Respondents in this disciplinary proceeding before Judge Jacobson, said that the action against Littleton
"was a difficult case for [Getson] because [Littleton] raised two defenses, one, he was only hired to enter his appearance, and the understanding with [Getson] was that [Littleton] would do nothing else and [Getson] would get somebody else involved in the case, and, second, that if Clarence Darrow had come back from the dead to try the case [of Robinette v. Getson] the results would have been the same."
The jury returned a verdict in favor of Getson against Littleton for $150,000. The highest offer had been $10,000. There were post judgment motions which were denied. There was no appeal.
Respondents fully expected that Blondell, as counsel for Robinette (and necessarily Hartford), would lay a garnishment in their hands to seize funds received from Littleton's legal malpractice carrier in satisfaction of the judgment. Respondents caused an associate attorney in their firm to research whether a garnishment would be limited to the net recovery after their fee and expenses. The garnishment was not laid until January 22, 1986.
On January 15, 1986, Respondents made distribution to Getson as set forth on a settlement sheet, a copy of which is attached as Appendix A to this opinion. The meeting lasted approximately two hours. Getson attended with his then wife whom Respondents describe as more sophisticated than Getson. She assisted in explaining the distribution and options to Getson.[4] Respondents explained to Getson that the Robinette judgment was outstanding against him and that they anticipated that Getson would be pursued for collection of it. Getson adamantly refused to permit any portion of the recovery to be disbursed to Robinette whom he insisted was responsible for the accident. In the settlement sheet Getson authorized Respondents "to pay to [Hartford] the sum of $52,588.85 representing the full amount of the workmen's compensation lien in the case of Robinette v. Getson."[5] The settlement sheet further recites that Getson "had authorized this because of the necessity for the assistance and appearance during trial of [Hartford's] agents and employees which acts of cooperation were necessary to the successful prosecution of [Getson's] case against Mr. Littleton."[6]
By letter dated January 20, 1986, Harlan wrote to a Mr. Rich at Hartford. The first paragraph of that letter includes the following: "Pursuant to the agreement made between Jac Knust, formerly of our office."[7] Harlan acknowledged that the reference to an agreement relates to the telephone contact by Hartford in 1984. He said that his characterization of the legal relationship was mistaken because Hartford's offer of employment had never been accepted.
In the letter Harlan advised Hartford that he was authorized to pay the subrogation interest in the Robinette judgment in full, and he suggested a one-third "fee" ($17,529.62) to Respondents. The mechanics of the disbursement were to enclose to Hartford a check for $35,059.23 (two-thirds of $52,588.85), by the acceptance of which Hartford would agree to the one-third "fee." This cleared two-thirds of Getson's balance out of the Respondents' escrow account and protected at least that much from the anticipated garnishment.[8]
Each of the Respondents admits that Getson knew nothing of the "fee" from Hartford. Harlan testified that his thinking at the time was that the "fee" from Hartford "wouldn't have made any difference to [Getson] one way or the other." Harlan "didn't think that there was any harm to Mr. Getson as to whether or not we were able to get $1.00, no dollar, seventeen thousand dollars ($17,000.00). It didn't affect him in any way, shape or form." Harlan discussed the proposed "fee" from Hartford with Knust. Knust guesses that he and Harlan "were thinking it was our efforts that produced the result here...."
Getson first learned from Blondell, or one of Blondell's associates, that Hartford had paid a "fee" to Respondents. Getson "felt bad about it," but "[n]ot really [angry]." He "just felt oh, these lawyers." When Getson learned of the fee, he telephoned Knust who, according to Getson, told Getson that Respondents "knew at the time, but they didn't feel that I should have known about it, whatever."
Blondell enforced the Robinette judgment against Getson by garnishing Getson's wages. Getson again consulted Knust. Knust, for a $750 fee, placed Getson in bankruptcy.
Blondell, in his own name, sued Respondents for the money paid by Hartford, but that case was dismissed on motion. Then, Robinette, represented by Blondell, sued Respondents on the theory that she was a third party beneficiary of the contract between Respondents and Getson relating to prosecution of Getson's claim against Littleton. That action resulted in a jury verdict in favor of the Respondents.
In the actions brought by or through Blondell, Respondents were represented by an associate in Harlan's new law firm, Joseph F. Zauner, III (Zauner). Zauner also represented Respondents before the inquiry panel. Zauner immediately analyzed the matter correctly and advised Respondents that the $17,000 was Getson's money which should be refunded to him.[9] Harlan acknowledged that "it took [him] a while" to recognize that the money should be paid to Getson. He said:
"I had some discussions with other people that were attorneys, as to the philosophy of whether that was correct or not because, the way that it happened, I thought that we were doing the right thing and, retrospectively, I lost the argument. They said, `Hey, just look at it from the other perspective.'"
The $17,000 was tendered to Getson's trustee in bankruptcy and was eventually accepted.
Getson never complained to Bar Counsel. The instant matter was precipitated by Blondell's complaint. Bar Counsel's investigation initially focused on Respondents' duties, vis-a-vis, Blondell, and eventually the focus of the investigation turned to Respondents' relationship with Getson. The inquiry panel, before which Getson, Harlan and Knust testified, recommended a reprimand. The Review Board directed the filing of charges. See Md.Rule BV7 b.
Bar Counsel's office, exercising prosecutorial discretion, concluded that it could not prove fraud by clear and convincing evidence using Getson as an essential witness. Indeed, Bar Counsel's office seemingly concluded that there was no fraud. Consequently, the stipulation of facts furnished to Judge Jacobson makes no mention of the memorandum of Knust's 1984 telephone conversation with Sandy Kelly of Hartford. Nor does the stipulation refer to Harlan's January 20, 1986, letter to Hartford in which he speaks of a pre-existing agreement. Similarly, Bar Counsel has not excepted to the finding that there was no violation of DR 1-102(A)(4).
In the present posture of the case, the core facts are these. Respondents were authorized by their client to disburse to Hartford $52,588.85 of client funds in order fully to satisfy Hartford's interest in the Robinette judgment. Respondents were able to negotiate to $35,059.23 the amount to be paid to Hartford in order to obtain one hundred percent satisfaction of Hartford's interest in the judgment. Respondents kept the saving of $17,529.62. That saving was their client's money.
Respondents never represented Hartford. Thus, there is no violation of DR 5-101(A). Bar Counsel's exception as to DR 5-101(A) is denied.
Respondents' alleged failure zealously to represent their client relates to the abandonment of their client's interest when carrying out Getson's instructions to disburse to Hartford. Rather than negotiate a reduction in the amount required to satisfy Hartford's interest in the judgment for Getson's account, Respondents negotiated that reduction intending it to be for their own account. Bar Counsel's exception is granted as to DR 7-101(A)(1) and (3).
Bar Counsel's exception addressed to the failure to find that Respondents had collected a clearly excessive fee in violation of DR 2-106(A) is also granted.[10] Because all of the work that had produced the funds used to satisfy Hartford's subrogation interest was work done by Respondents for Getson under the fifty percent fee agreement, and because the saving effected in satisfying Hartford's interest in the judgment against Getson was a saving realized, in law, for Getson's account, the most charitable characterization of Respondents' retention of the $17,529.62 is as an additional fee to Respondents from Getson. That additional fee exceeds the fee agreement by 22.66% without the knowledge or consent of the client.
Counsel representing Respondents in this Court argues that "[u]nder the unique circumstances here, Respondents reasonably could have believed that at the time they turned their attention to the matter of any fee from The Hartford, they had fulfilled their obligations to Getson by the manner in which the monies were disbursed." We disagree. It is clear that Respondents' conduct was unethical. See Maryland State Bar Ass'n, Inc., Committee on Ethics (MSBA) Docket 78-24 (March 10, 1978) (plaintiff's attorney in personal injury case who disbursed to subrogated health insurer amount of benefits paid and who received a fee from that subrogee must credit that fee to client); MSBA Docket 77-65 (May 13, 1977) (plaintiff's attorney in personal injury case cannot collect, for a fee from health care provider, the charges for that provider's services rendered to attorney's client); MSBA Docket 71-13 (undated) (where creditor's attorney collects a legal fee from debtor, per provisions of promissory note, that fee must be credited against any fee payable by creditor).
In Attorney Grievance Comm'n v. Korotki, 318 Md. 646, 569 A.2d 1224 (1990), a case of clearly excessive fees, we suspended the attorney for eighteen months. The amounts that Korotki sought to extract from his clients, over and above that to which they had agreed, far exceeded the $17,000 involved here. On the other hand, Korotki was blatantly open in his demands, whereas the Respondents attempted to enhance their remuneration without their client's knowledge. We view this aspect of the case as particularly serious. Mitigating the violation is the fact that, once the Respondents brought themselves to recognize the validity of Zauner's analysis of their ethical obligations, they refunded the money for Getson's account and freely acknowledged Getson's entitlement to the money before the inquiry panel.
Under all of the circumstances the appropriate sanction is a suspension for six months.
Joseph Benson Harlan and Jac Edward Knust shall stand suspended from the practice of law in this State for a period of six months beginning thirty days from the date of the filing of this opinion. They shall stand suspended beyond that date unless and until all costs incurred in connection with this proceeding are paid in full.
IT IS SO ORDERED; RESPONDENTS SHALL PAY ALL COSTS AS TAXED BY THE CLERK OF THIS COURT, INCLUDING THE COSTS OF ALL TRANSCRIPTS, PURSUANT TO MARYLAND RULE BV15 c FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION AGAINST JOSEPH BENSON HARLAN AND JAC EDWARD KNUST.
APPENDIX A
(Letterhead Omitted)
FULL AND FINAL SETTLEMENT
GETSON V. LITTLETON
January 15, 1986
Judgment $150,000.00
Expenses:
Attorneys' fee (contract 1/21/83) $75,000.00
Lien of Hartford Ins. Co. 52,588.85
Expert witness (Judge Grady) 970.00
Deposition costs:
11/13/85 55.00
11/4/85 28.60
1/9/85 80.29
4/16/85 55.00
11/7/85 29.70
Duplicating expenses 76.20
Private Process expenses 65.00
Delivery Services 30.00
_____
Total Expenses: 128,978.64
___________
Net due Client $ 21,021.36
I have read and fully understand and agree to the above settlement in the case of Getson v. Littleton. I understand that the judgment against me from the case of Robinette v. Getson has not been extinguished, paid or satisfied out of the proceeds of this judgment with the following exception. I have authorized my attorneys to pay to the Hartford Insurance Company the sum of $52,588.85 representing the full amount of the workmen's compensation lien in the case of Robinette v. Getson. I had authorized this because of the necessity for the assistance and appearance during trial of their agents and employees which acts of cooperation were necessary to the successful prosecution of my case against Mr. Littleton. It is my express wish and desire that my attorneys not pay any monies to any other parties in satisfaction of the judgment in the case of Robinette v. Getson. I understand that I may and probably will continue to be liable under that judgment aforesaid. In addition I certify that I am completely and totally satisfied with the representation in the case by ... Joseph B. Harlan [and] Jac E. Knust....
/s/ ____________
Frank Getson
NOTES
[*] Adkins, J., now retired, participated in the hearing and conference of this case while an active member of this Court but did not participate in the decision and adoption of this opinion.
[1] The above-cited disciplinary rules read:
"DR 1-102 Misconduct.
(A) A lawyer shall not:
(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation."
"DR 2-106 Fees for Legal Services.
(A) A lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee."
"DR 5-101 Refusing Employment When the Interests of the Lawyer May Impair His Independent Professional Judgment.
(A) Except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests."
"DR 5-107 Avoiding Influence by Others Than the Client.
(A) Except with the consent of his client after full disclosure, a lawyer shall not:
(1) Accept compensation for his legal services from one other than his client."
"DR 7-101 Representing a Client Zealously.
(A) A lawyer shall not intentionally:
(1) Fail to seek the lawful objectives of his client through reasonably available means permitted by law and the Disciplinary Rules, except as provided by DR 7-101(B). A lawyer does not violate this Disciplinary Rule, however, by acceding to reasonable requests of opposing counsel which do not prejudice the rights of his client, by being punctual in fulfilling all professional commitments, by avoiding offensive tactics, or by treating with courtesy and consideration all persons involved in the legal process.
....
(3) Prejudice or damage his client during the course of the professional relationship, except as required under DR 7-102(B)."
[2] The exhibits that were introduced at the inquiry panel hearing were not introduced before Judge Jacobson, with the exception of the settlement sheet which is attached to this opinion as Appendix A.
[3] Nor does the record before the inquiry panel explain precisely how this report was "crucial." A custodian of Hartford's investigation file, who had no personal knowledge of the investigation, produced that file at the Getson v. Littleton trial. It appears that portions of the file which were not conclusory were admitted. Harlan also testified that, during the Littleton trial, Getson for the first time told Harlan of an eyewitness whose testimony produced some evidence of contributory negligence on Robinette's part. (Counsel for the malpractice carrier apparently did not file interrogatories requesting the identity of witnesses.) Finally, Harlan had obtained diagrams which Robinette had made for her counsel which Harlan utilized to cast some doubt on Robinette's credibility in cross-examination.
[4] Getson and his wife were later divorced. She is said to reside somewhere in Texas. She was not a witness in these disciplinary proceedings.
[5] The record does not make clear the original, principal amount of workers' compensation paid by Hartford to Robinette, or whether $52,588.85 includes full interest on Hartford's portion of the judgment from the date of judgment.
[6] Three years and two months later, before the inquiry panel, Getson's attention was directed to the $52,588.85 disbursement on the settlement sheet. He explained: "That's the money that, I guess, was owed to The Hartford Insurance Company." It was paid to them "[b]ecause it was better to them than to her [Robinette]." Getson testified he read and understood the explanatory statement at the bottom of the settlement sheet. He agreed to pay Hartford because he "figured if [he] had to pay someone, it was the insurance company that lost out of all." Assistant bar counsel's direct examination of Getson at the inquiry panel concluded as follows:
"[ASSISTANT BAR COUNSEL]: And I believe you testified before, but I want to ask you once more, were you told at any time that you need not pay the money to The Hartford[]?
"MR. GETSON: Not The Hartford. I thought I was told it had a lien on it, it says on the paper.
"[ASSISTANT BAR COUNSEL]: It says on this paper here that there's a lien on it. But that was a lien against Mrs. Robinette, I guess, here. Did you understand that?
"MR. GETSON: Not at the time."
[7] As noted above, n. 2, the exhibits are not in the record. Only the quoted words were read into the transcript record of the inquiry panel proceedings.
[8] It would also have been consistent with avoiding garnishment for Respondents to have taken the balance of Getson's funds into income at the same time, in anticipation of Hartford's approval of the "fee," but the record does not affirmatively reveal this.
[9] The parties have referred to the "fee" from Hartford as $17,000 and we shall do the same.
[10] The events with which we are concerned here took place well prior to our opinion in Attorney Grievance Comm'n v. Korotki, 318 Md. 646, 569 A.2d 1224 (1990). There we sent a clear warning to the bar that "it is generally a violation of the rule for the attorney's stake in the result to exceed the client's stake." Id. at 665, 569 A.2d at 1233.
We note that the contingent fee agreement in the instant matter called for a fifty percent fee calculated on the gross recovery, i.e., all of the expenses of the litigation were to be borne by the client. Even if we assume, arguendo, that a fifty percent contingent fee on the net recovery in the instant matter was within the range of reasonableness, it would seem that the Respondents would have acquired a greater stake in the litigation than their client, even if the Respondents had charged no more than their agreement provided.
This analysis played no part in Bar Counsel's proof of the charges in the instant matter, and we do not rest our finding of violation in any way on the face of the fee agreement.
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Argued October 6, 1927.
On April 13, 1920, the Dravo Contracting Company, a New Jersey Corporation, the legal plaintiff, entered into a written contract with James Rees Sons Company, a Pennsylvania corporation, defendant, by which the former undertook to furnish material and construct for the latter two steamboat hulls of the best open *Page 390
hearth steel, galvanized, for the sum of $68,310. Both parties were engaged in ship building at Pittsburgh and the hulls were to be constructed according to specifications, etc., attached to the contract; one to be finished within five and one-half months and the other within six and one-half months from date of contract. On October 20, of the same year, neither of the hulls having been finished or delivered, defendant ordered plaintiff to quit work under the contract. Thereafter plaintiff brought this suit for damages for alleged breach of contract and recovered a verdict of $33,756.70, and, from judgment entered thereon, defendant has appealed.
The case turned almost entirely on disputed questions of fact and we find nothing in the record requiring a new trial. It was somewhat complicated by the fact that on the same day (April 13, 1920) the plaintiff entered into another written contract by which it agreed to construct eight steel barges for the defendant. After some delay, at the instance of defendant, the latter contract was completed and the barges accepted and paid for, except an item of interest to which we refer later. The barges contract was silent on the kind of steel to be used and each contract provided for partial payments on monthly estimates to be submitted as the work progressed. Defendant contended that there was an outside understanding that the barges were also to be of open hearth steel. In any event, plaintiff used annealed Bessemer steel, at least in part, in constructing the barges, and as above stated they were accepted by defendant.
It was plaintiff's contention that shortly after the date of the contracts its manager called defendant's attention to the great difficulty in obtaining open hearth steel and that defendant's general manager agreed verbally to such a modification of the hulls contract as to permit the use of Bessemer steel, in place of the open hearth steel specified. Plaintiff's president and manager both testified to this verbal modification, while defendant's *Page 391
general manager as positively stated the contrary, and testified he had no knowledge of Bessemer steel being used under either contract until over a year later. His testimony was somewhat weakened by the fact that in his affidavit of defense, as originally filed, he states that application, as claimed, was made to Lim for leave to use the Bessemer steel but avers he did not assent thereto. In an amended affidavit of defense he denies such application and says the statement in the original was a mistake. The monthly statements submitted as to the hulls contract are silent as to the kind of steel being used, but the first statement as to the barges, submitted June 30, 1920, discloses the use of Bessemer steel. These steamboats and barges were intended for use on the Magdalena River in South America and evidence for plaintiff tended to show that for such purpose Bessemer steel, when softened by proper annealing, was equal to the best open hearth steel. This was contradicted on behalf of the defense. A considerable part of the steel used for the hulls was Bessemer steel and the trial judge instructed the jury, in effect, that the burden was on plaintiff to prove, by the weight of the evidence, a modification of the contract permitting such use, and unless it had done so there could be no recovery. That the trial judge emphasized the right of the parties to so modify the contract was not error.
The defendant was building the steamboats for Angel Co., Inc., of New York, for its South American customers, who, because of their country's financial difficulties, ordered the construction stopped. That was the reason defendant gave plaintiff for stopping work under the contract; but in answer to this suit defendant averred a failure of plaintiff to complete the work within the specified time. True, under the contract one hull should have been finished some three weeks before the countermand and the other within two weeks thereafter, but this was not done. Treating time as of the essence of the contract, without deciding whether it *Page 392
was so, there was ample to justify the jury in finding defendant had waived a strict compliance therewith. On August 10, 1920, defendant's general manager wrote plaintiff complaining of the delay in getting the work started and saying, inter alia, "You are going to be far behind on the boats," and expressing regret therefor, but making no suggestion that the work must be completed on the exact dates, or otherwise the contract would be breached. Then defendant permitted plaintiff to continue the work for three weeks after the time for delivery of the first hull and stopped it for an entirely different reason. Thereafter defendant requested a statement as to amount of work done, expenses incurred, etc., and, according to plaintiff's evidence, asked that the statement include profits on the job. Defendant's conduct was inconsistent with the contention that plaintiff had forfeited its rights by reason of the time limit. Having allowed the stated time to go by, neither party could suddenly terminate the contract without giving the other an opportunity to perform. See Riddle Co. v. Taubel, 277 Pa. 95; Hatton v. Johnson, 83 Pa. 219; Irvin v. Bleakley, 67 Pa. 24; McGlinn v. Jackson, 86 Pa. Super. 562; Dunham, Inc., v. Nemitz,82 Pa. Super. 382; Burchfield v. Alpha Process Co., 45 Pa. Super. 254. Under all the facts in the case we are not persuaded that the defendant was prejudiced by the delay complained of. Permitting plaintiff to go on with the work after the time had expired would justify the finding of a waiver: Brackin et al. v. Welton Eng. Co., 283 Pa. 91; and see Welch v. Disk, 236 Pa. 155; Dunham, Inc., v. Nemitz, supra; 13 C. J. 689. No just criticism can be made of the instructions relating to damages. As there stated, plaintiff was entitled to recover for overhead charges in addition to the labor actually performed in connection with the work done under the contract (Lytle, Campbell Co. v. Somers, F. T. Co., 276 Pa. 409), also for such actual profit as plaintiff would have received on completion thereof: *Page 393
Bates v. Carter Construction Co., 255 Pa. 200; Clyde Coal Co. v. P. L. E. R. R. Co., 226 Pa. 391; Wilson v. Wernwag,217 Pa. 82; United States v. Behan, 110 U.S. 338, and other cases. Furthermore, the 4th clause of sec. 64 of the Sales Act of May 19, 1915, P. L. 543, 562, provides that, where the purchaser repudiates the contract before delivery, the seller shall be entitled to the profit he would have made had the contract been fully performed.
Complaint is made that the charge as a whole was unduly favorable to the plaintiff. This we have carefully considered but are not satisfied the complaint is well founded. While it dwells at considerable length on plaintiff's contentions and proofs it does not ignore those of the defendant. Substantially every material feature of the defense is called to the attention of the jury and its requests, so far as proper, were affirmed. An appellate court will not grant a new trial merely because the charge refers at greater length to the proofs on one side than to those on the other, and that is about all that can be justly said here. While asking for a correction to which we will hereafter refer, counsel did not, when expressly given an opportunity, request further instructions on any branch of the case; hence, it is now too late to complain of mere inadequacy: Fern v. Penn. R. R. Co., 250 Pa. 487. Defendant took only a general exception, which of course might be done under the Act of May 24, 1923, P. L. 439, but it is still the general rule that error cannot be assigned as to what was not said without a request to say it: Davis v. Cauffiel, 287 Pa. 420,425; McCaffrey v. Schwartz, 285 Pa. 561; Gillett et ux. v. Yellow Cab Co., 87 Pa. Super. 365.
The remark of the trial judge that the receipt by a party of monthly statements and their retention without objection was a circumstance for the jury to consider as tending to show their accuracy, was nothing of which defendant could complain. He did not say *Page 394
the monthly statements, as to the hulls contract, designated the kind of steel, and, when counsel called his attention to the fact that they did not, the judge replied: "I think we stated that to the jury, and it was not contradicted on either side, but there was something said about the barge steel that was estimated." In this the judge was right, for the first barge statement, as above mentioned, referred to Bessemer steel.
Plaintiff had purchased much of the steel and fabricated some before defendant countermanded the order for the hulls. There was some evidence as to the cost and value of the steel and the loss plaintiff sustained thereon; hence, defendant's second request was properly refused. In an effort to salvage the loss, each party used some of the steel in question.
That defendant had purchased a quantity of open hearth steel shortly before making the contract in question did not tend to prove that plaintiff could do so at a later date, and that fact was properly excluded.
There was no error in rejecting the offer to show a parol understanding outside of the barges contract for the use of open hearth steel therein. Such fact, whether competent or not, was irrelevant to the hulls contract where such steel was expressly specified.
At defendant's request work on the barges contract was postponed for many months and there was long delay in payment of the amounts due according to the monthly statements, for which the plaintiff recovered an item of $1,100, as interest; whereby no injustice seems to have been done; but whether technically right or wrong we cannot decide as no such matter is suggested in the statement of questions involved. The discretion of the trial court in passing upon a motion for a new trial, as we have often said, will not be reviewed except to correct a manifest abuse of discretion, which does not appear in this case.
The assignments of error are overruled and the judgment is affirmed. *Page 395
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Defendant, Celie Butler, having killed her husband, was found guilty of murder in the first degree and the jury fixed the penalty at life imprisonment. After a new trial was refused and sentence imposed, she took this appeal.
The facts are not complicated and can be stated briefly. Defendant and Charles Butler were married in South Carolina. In 1925 they took up their residence at Brackenridge, Allegheny County, and Butler found work as a laborer in a local steel plant. Their family life was not happy, she accusing him of maintaining illicit relations with Reeva James, the wife of her son by a prior marriage. On Wednesday, April 26, 1939, at about 12:15 a. m., she appeared at the police station of the Borough of Brackenridge and reported that she had killed her husband. She was taken by officers to her house, where Butler was found dead, lying on a couch in the kitchen, he having died from a shotgun wound in his left temple.
The Chief of Police testified that when defendant appeared at the police station, she said, "We had a little spat, that's all. He threatened to kill me. He said, 'One of us is going to hell tonight, you or I, one of us.' I killed him." Another officer testified that at her home, at the request of the officers, she enacted the manner of the killing, and that she then stated that her husband *Page 164
had returned home late that evening and had quarreled with her; that he took the shotgun, loaded it, and placed it at the head of the couch where he lay down, saying, "Somebody is going to hell tonight"; that she waited five minutes until she thought he was asleep; then picked up the gun, pointed it at his head and fired. The officers said she appeared calm and collected throughout the proceeding.
At the trial, however, defendant told a decidedly different story. She said in effect that the killing was an accident. She explained the happening by saying that she attempted to take the gun to put it out of her husband's reach; that he heard her and, suddenly reaching out, took hold of it; that as she pulled back, her "hand hit the trigger and the gun went off." She insisted she had no intention of killing him.
The contrary is decisively indicated by the testimony of Commonwealth witnesses. A number of them testified that during the week before the tragedy, in fact down to the very hour it happened, defendant advertised the fact that she intended to take her husband's life. Reeva James said that two days before, she told her that she intended to kill him. Julia Sellers testified that defendant talked to her on the Sunday prior to the killing, and said she was going to blow his brains out. The same witness testified that on Tuesday, the day before the slaying, defendant again told her that she was going to murder her husband. Ambrose Guyton stated that she said to him on the afternoon before the homicide that he would hear something before morning. Mrs. Rosalie Gilchrist testified that the Sunday before, defendant showed her two shotgun shells and said, "This sure is — if Charlie lay his head in this house, I'm going to kill him." Mrs. Gladys Powell said that she saw defendant about 11:30 Tuesday night, within an hour of the killing, and that she then told her that she had stood it as long as she could and someone would have to go. Enzella Combs testified that he saw defendant about twenty minutes to *Page 165
twelve Tuesday night, also within an hour of the killing, and that she told him "If you want your friend . . . to live, . . . tell him not to sleep in this house tonight." All of which shows defendant fully apprised the neighborhood of her intention to kill her husband.
Defendant made a sweeping denial of all the threats which these witnesses alleged she made. She testified that she knew her husband was consorting with Reeva James, but that she was not jealous, and that she did not care. She offered evidence to show that her husband had beaten and abused her on numerous occasions and that he had made threats against her life.
It is clear that there was much testimony which, if believed by the jury, would properly lead to the verdict that the killing was wilful, deliberate and premeditated. That defendant had considered such action for some time cannot be doubted and that she knew and understood thoroughly what she was doing is beyond contradiction. She deliberately committed the crime with the definite intention of taking human life.
The principal assignment of error alleges that the learned trial court erred in permitting the District Attorney "to inflame the passions and prejudices of the jury by producing twenty-two life insurance policies, in full view of the jury, as a motive by the defendant for the homicide, . . ." The learned court en banc explained the situation concerning the production of the policies and adequately disposed of this objection on its merits in these words: "The Commonwealth offered in evidence insurance policies upon the life of the deceased, in which the defendant was the beneficiary. Although there was testimony concerning some twenty-two policies, it was explicitly stated that none of them could be introduced in evidence unless the defendant were named as the beneficiary. The defendant objected to the introduction of such testimony, which objection was finally sustained, and the Jury told to disregard any statements concerning any insurance policies. The defendant *Page 166
contends that the display of policies in the custody of the Evidence Custodian before the Jury was so highly prejudicial that a new trial should be granted, for this reason. None of the policies were received in evidence, and the Jury was carefully and fully instructed to totally disregard insurance as a motive for the killing." The learned trial court had said to the jury: "In order to clear this record, members of the jury, we will sustain the objection heretofore made by the defense as to any insurance policy taken out on the life of the deceased, because there is no evidence here that the Commonwealth can prove that [any policy] has been taken out shortly before the death of the deceased, or that she had said at any time that she intended to kill the deceased because of the insurance; consequently we will eliminate from your consideration any evidence concerning any insurance policies as a motive for the killing. All evidence pertaining to insurance policies, as a motive for the killing, is stricken from the record." We are certain that defendant suffered no prejudice and that the jury was not influenced by the offer or rejection of these policies. The trial court made it very clear that they were stricken from the record. This satisfied defendant's counsel, who then said to the court, "In other words, your Honor, these policies have nothing to do with this case?" To which the court replied, "That is just what I told the jury." No objection was made in behalf of defendant nor any motion made to withdraw a juror.
Another assignment complains of the action of the trial court in failing to charge the jury as to the law on self-defense. At the trial there was no pretense that anything but "accidental killing" was relied on as a defense. The defendant by her own testimony claimed that the killing was an accident. It was for this reason that the learned trial court very properly omitted to charge the jury as to the law on self-defense. Furthermore, no request was made for such a charge. *Page 167
There is no merit in any of the assignments of error and, therefore, they are dismissed. Defendant had a fair trial; overwhelming testimony convinced the jury, beyond a reasonable doubt, of her guilt of murder of the first degree, all the elements of which appear in the case.
Judgment affirmed.
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In this case the plaintiff, Velma E. Prime, seeks a declaratory judgment establishing the validity of her claim against the estate of Glenn E. Prime, deceased, for the amount of $35 per month for the period of her life or until she remarries, adjudicating that Edith B. Prime has assumed and become liable for all such payments due and to become due, establishing the validity of the will of Glenn E. Prime and requiring the defendants, Edith B. Prime and the Pioneer Trust Company, to set up a trust estate in accordance with the terms of said will and for further relief.
Concerning plaintiff's continuing claim for $35 a month, it is sufficient to say the undisputed evidence upon the issues as made up by the pleadings raises a single but important question of law.
The plaintiff, Velma E. Prime, and Glenn E. Prime, now deceased, were husband and wife and were the parents of Mary Jean Prime and Glenn E. Prime, Jr., defendants and appellants herein. On April 12, 1930, Velma E. Prime filed suit for divorce. On August 6, 1930, the parties to that suit entered into a written agreement in anticipation of divorce. That agreement recites that the parties are husband and wife and the parents of two children, that differences have arisen and that the parties are now living apart,
"* * * and it is regarded by both parties hereto as being proper and expedient that a full, final and complete property settlement be had and made between them, and the parties hereto have agreed thereon, and on the amount thereof."
The agreement is attached as an exhibit to the complaint and provides for the conveyance to the plaintiff of real property owned by defendant and the payment to her or for her benefit of substantial sums of money. The money was placed in escrow to be delivered to *Page 38
plaintiff in the event that a decree of divorce approving the property settlement was rendered. Then follows the paragraph which is in issue here and which reads as follows:
"3. The first party shall pay to the second party, beginning September 1, 1930, the sum of $35.00 per month until the death or re-marriage of the second party, whichever shall happen the sooner."
Paragraph 8 and 9 are as follows:
"8. The settlement herein provided to be paid and rendered by the first party to the second party is taken and received by the second party as a full, final and complete property settlement made and had with full disclosure to her of the financial worth and condition of the first party, and said sums and property so paid and rendered are taken and accepted by the second party in full payment of all alimony, suit money, support, maintenance, court costs and attorney's fees and of all other claims and demands of a financial nature that the second party can or might assert against the first party because of or growing out of said marriage relation now and heretofore existing between the parties hereto.
"9. It is understood and agreed that in the event that a divorce shall be granted to either of the parties hereto that included in the decree of such case and made a part thereof shall be the substantial provisions of this property settlement, and both parties agree that such may be included in said decree and be made thereby a part of the record in such case."
Thereafter the cause was tried, and on August 22, 1930, a decree of divorce was entered at the suit of the plaintiff. The decree provided:
"It is further ordered, adjudged and decreed by the Court that all of the property rights of the *Page 39
above named plaintiff and defendant have been settled between the parties to this suit, and it now appearing to the Court that said settlement was fair and regular, the same is hereby ratified, confirmed and approved, and that said settlement shall forever remain binding upon the parties to this suit."
The plaintiff, Velma E. Prime, has never remarried. Glenn E. Prime during his lifetime made the monthly payments of $35 as they accrued. He died on the 20th day of April, 1941, and in June, 1941, the plaintiff filed her claim with the defendant, Pioneer Trust Company, executor of the last will and testament of Glenn E. Prime, deceased. The said executor rejected the claim.
It appears that a justiciable controversy exists between the plaintiff and the defendants, Pioneer Trust Company and Edith B. Prime, in that the plaintiff claims that the estate of Glenn E. Prime is obligated to continue to pay to the plaintiff the sum of $35 a month until her death or remarriage, which claim is contested by said defendants. The plaintiff asserts that Edith B. Prime is the widow of Glenn E. Prime, deceased, and that she executed with her husband, Glenn E. Prime, a joint will whereby she obligated herself to pay the aforesaid claim of the plaintiff.
The issues concerning the joint wills of Glenn E. Prime and the defendant, Edith B. Prime, will later be stated and discussed. Consideration will first be given to the claim of Velma E. Prime against the estate of Glenn E. Prime, deceased, (her divorced husband) for $35 a month until her death or remarriage.
The defendants, Glenn E. Prime, Jr. and Mary Jean Prime, admitted the allegations of plaintiff's complaint relative to her claim for $35 a month. The defendant, *Page 40
Pioneer Trust Company, after commencement of the trial, filed a general denial. The trial court found that the plaintiff's claim against the estate of Glenn E. Prime, deceased, was valid. From that judgment the defendant, Pioneer Trust Company, as executor, appeals. Although the children, Mary Jean Prime and Glenn E. Prime, Jr., appear to be the ones chiefly interested in the question and have admitted the validity of plaintiff's claim, nevertheless, the Pioneer Trust Company, as executor, having duties owing to any creditors of the estate as well as to beneficiaries, was within its rights in presenting this question, and we are required to decide it.
Under the pleadings we must determine whether the so-called property settlement above set forth, when approved by the order of the court in a divorce case, is an enforceable claim against the estate of Glenn E. Prime, deceased. It is undisputed that all installments were paid until the death of Glenn E. Prime. The only question relates to the validity of the installments accrued and accruing subsequent to the date of his death.
In seeking a solution, we must attempt, with due regard for authority, to harmonize two conflicting principles of law, both valid in their own proper setting. The obligation of contracts must be respected and their terms enforced. Courts do not ordinarily remake the agreements of private parties. On the other hand, the decree of a court of equity in a divorce suit respecting the obligation of the party at fault to contribute to the maintenance of the other is, by statute, subject to modification. Such a decree constitutes a final determination from which an appeal may be taken (as in Stout v. Stout, 99 Or. 133, 195 P. 153). Yet, it may *Page 41
be modified as to the future upon suitable showing of changed circumstances. O.C.L.A. 9-915. The case at bar presents a combination of the two situations, a contract of the parties apparently binding, incorporated in a decree apparently subject to modification.
We will first consider the situation as it was prior to the death of the defendant. It is to be noted that we are dealing with executory provisions of the decree and contract. That a property settlement based on contract and approved by the court may be binding on the parties and beyond the power of the court to modify is beyond question. State ex rel. v. Kiessenbeck,167 Or. 25, 114 P.2d 147. Such a case was Taylor v. Taylor,154 Or. 442, 60 P.2d 942, wherein property held by and standing in the names of both parties was divided by an agreement which the court found to be equitable and which this court enforced. (See also Geis v. Gallus, 130 Or. 619, 278 P. 969, an executed property settlement approved by the court.) There is, of course, no question as to the binding effect of a contract for maintenance when approved by decree of the divorce court, for the decree alone is binding, but the decree alone, though final and appealable and hence binding, is subject to modification upon a showing of changed conditions. The question is whether a decree for maintenance when based on an agreement of the parties which has been approved by the court as equitable is also subject to modification upon a like showing.
Even in the case of contracts between husband and wife in anticipation of divorce which merely provide for the present division of their property to the accumulation of which both have contributed, it has been held that equity would refuse enforcement if the agreement was inequitable. In Hill v. Hill,124 Or. 364, 264 P. 447, *Page 42
this court refused to enforce such a contract and disposed of the identical real property which was the subject of the contract according to its own determination of the rights of the parties. It is apparent that contracts in anticipation of divorce are subject to peculiar rules not applicable to ordinary contracts for the disposition of property or the payment of money. It cannot always be said of such agreements that the mere presence of mutual assent and legal consideration obligates the promissor to pay and binds his estate upon his decease. Nor do the courts as in ordinary contracts refuse to weigh the consideration received as against the value of the promise given. Hill v.Hill, supra. As to provisions of a decree requiring installment payments for future maintenance of the wife, the editors of A.L.R. have well said:
"* * * the general rule is that where a court has the general power to modify a decree for alimony or support, the exercise of that power is not affected by the fact that the decree is based on an agreement entered into by the parties to the action." 109 A.L.R. 1068, and notes citing many cases.
We cannot, however, glibly announce a rule of thumb that all property settlements when approved by the court can be modified upon changed conditions. We have already noted the distinction as to fully executed transactions, and there may be instances in which even an executory agreement for future periodical payments, when approved and incorporated in a decree, should be held invulnerable to modification, even in the event of changed conditions. For example, if husband and wife are each the owners of real property, and if they agree that in lieu of a division of their property between them the rights of the wife shall be *Page 43
liquidated by means of payments in the nature of an annuity, and if the agreement shows and the court finds that such provision was adopted as and constitutes a fair method of liquidating the actual property rights of the wife and approves the agreement in the decree, we suppose that such payments in the nature of an annuity would not be subject to later modification in the event of changed conditions. Parker v. Parker, 193 Cal. 478,225 P. 447. The difficulty is in drawing the line between approved agreements in the nature of alimony which are subject to modification and approved agreements in the nature of an annuity employed as a means of adjusting the wife's property rights. In any event, it is clear that the mere fact that there is an agreement supported by technical consideration such as waiver of court costs, attorney's fees and the like does not deprive the court of power to modify a divorce decree for periodic payments of maintenance in the event of changed conditions. See note 58 A.L.R. 639 and 109 A.L.R. 1068.
In Warrington v. Warrington, 160 Or. 77, 83 P.2d 479, it was said that no property rights were involved, but it is reasonable to assume that technical consideration for the agreement concerning alimony existed. The court said:
"The right to alimony is, therefore, based upon the statute and not upon any contractual obligations. The law is designed for the protection of the parties and to promote the welfare of society. How, then, can parties, by any private agreement, oust the court of jurisdiction to regulate the payment of alimony when the status of the parties justifies a modification? Any agreement of the parties in reference to the payment of alimony was made in view of the statute authorizing the court to modify *Page 44
the same. The mere fact that the court incorporated in the decree the stipulation concerning alimony is immaterial. It is entirely possible that, while the court undoubtedly considered the stipulation of the parties fair and equitable at the time the decree was rendered, it might, upon a showing of subsequent changed conditions, deem it unjust. To hold otherwise would defeat the very purpose and spirit of the statute.
"Undoubtedly the decided trend of modern authorities is to the effect that, where a court has the power vested in it by statute to modify a decree for alimony, the exercise of such power is not affected by the fact that the parties agreed concerning the amount of alimony to be paid and that such stipulation was incorporated in the decree." Warrington v. Warrington (supra) 160 Or. at p. 80. (Citing many cases.)
In Phy v. Phy, 116 Or. 31, 236 P. 751, 240 P. 237, 42 A.L.R. 588, the parties executed a contract in anticipation of divorce wherein it was provided:
"That this agreement is a property settlement and alimony, shall be taken as a full and complete settlement of all property interests and alimony between the parties and neither party hereto shall be compelled to pay, nor either party hereto can recover, any more property or alimony than is as herein set out. And such property settlement and agreement of alimony shall be in full for all property rights, costs, attorney's fees and alimony, in any suit whatsoever."
The contract provided also for the conveyance to the wife of specified personal property and also for the payment of specified amounts of money and additional monthly payments "not to exceed" a certain sum. The contract was approved by the court. Thereafter, the former husband moved for a modification of the provisions *Page 45
relative to alimony upon the ground that the former wife had remarried. The court said:
"When the allowance for alimony or maintenance arises from a consideration of the restitution of property brought to the husband by the wife, the decree awarding such maintenance should be regarded as a final adjudication of the matter. But, as said by Mr. Justice Wolverton in speaking for this court in Brandt v. Brandt, 40 Or. 477, 486 (67 P. 508, 510):
"`Where it is made as a matter of support and maintenance merely, then the changed condition of the parties, as where the faculties of the husband have diminished, or the divorced wife has acquired other facilities or means of support, will warrant such a revision or modification, diminishing or cutting off the allowance in toto, as may seem reasonable and proper.'" Phy v. Phy (supra), 116 Or. at p. 37.
In the Phy case this court was not controlled by the wording of the contract to the effect that it constituted a "property settlement."
"There is no contention here that the wife ever brought any property into the estate of her husband, or that the award of alimony or maintenance was based upon the relinquishment of any property rights."
Again, the court said,
"The stipulation shows both a property and an alimony settlement, but it does not show that the alimony awarded was based upon property rights of the wife. In this jurisdiction, a decree for alimony is subject to modification by the court in which it was entered, according to the varying circumstances of the parties." Phy v. Phy (supra) 116 Or. at pp. 39, 44. (Italics ours.)
We think that Phy v. Phy supports the theory that, subject to exceptions already noted, an agreement reciting *Page 46
that it constitutes a property settlement and also providing for future periodic payments will not be deemed to create a vested right beyond the power of the court to modify unless something more is shown than the designation by the parties of the agreement as a "property settlement" and the existence of technical consideration. As to the executory provisions of an agreement, if they are found to be in the nature of alimony, the same power which may refuse to approve them in the first instance may also modify them after approval in the event of changed conditions. The latter power is no greater than the former. The case indicates that an agreement in anticipation of divorce may constitute in part a genuine property settlement and in part a bare agreement for alimony made in contemplation of the statute authorizing modification.
In Warner v. Warner, 145 Or. 541, 28 P.2d 625, the parties stipulated for the payment of permanent alimony at the rate of $50 per month, which provision was adopted in the decree. The abstract of record discloses that the stipulation also provided as follows:
"This stipulation for settlement of alimony is a property settlement between the parties hereto and it shall not be modified or set aside except by mutual consent of the parties.
"The plaintiff agrees that she will not ask for judgment and decree for any sum of money other than that above specified in this stipulation, that she waives her rights to attorneys' fees and costs in this case, but by this stipulation she does not waive her right, but reserves her right to enforce the payment of said alimony by all legal means."
Thereafter the defendant moved for a modification of the decree by reason of his changed financial circumstances. The plaintiff former wife contended that the *Page 47
stipulation was based on a contract for which consideration was given that it was not subject to modification. The court said:
"After a careful study of the opinions in this state, we conclude that if the allowance to the plaintiff in the divorce suit was simply for maintenance or alimony and not a settlement of property rights, then, in a proper case, the court in its discretion may set aside or modify the decree for alimony. Andrews v. Andrews, 144 Or. 200, 24 P.2d 332." Warner v. Warner, supra, 145, at p. 543.
In that case it appears from the evidence that the parties had no property either at the time of the marriage or at the time of the divorce, but it is clear that there was such consideration as would have supported an ordinary contract. In addition to other reasons of less persuasive weight, the court held that the stipulation for the maintenance was made in contemplation of the statute which gives the court power to modify the decree, and the stipulated payments were accordingly reduced.
In Herrick v. Herrick, 319 Ill. 146, 149 N.E. 820, the parties entered into a property settlement agreement in anticipation of divorce. Among other provisions the husband agreed to pay to trustees for the support and maintenance of his wife during her life-time the sum of $350 a month. Each party released all interest in the property of the other by way of homestead, dower or otherwise. A decree of divorce was entered which incorporated the agreement. It was held that both parties having consented to the provision for alimony, it was binding until modification.
"* * * but that does not preclude the court which entered the decree from modifying it when there is a change in circumstances which justifies a modification." *Page 48
The court said:
"In addition to providing alimony during the joint lives of the parties, the decree, by consent, may provide for the payment of alimony as long as the wife lives (Storey v. Storey, 125 Ill. 608, 18 N.E. 329, 1 L.R.A. 320, 8 Am. St. Rep. 417), and thereby give a substitute for dower. Adams v. Storey, 135 Ill. 448, 26 N.E. 582, 11 L.R.A. 790, 25 Am. St. Rep. 329. The fact that the provision made for the support and maintenance of the wife is incorporated in the decree by agreement of the parties and adds nothing to the force of the decree and does not affect the power of the court to enter further orders respecting alimony. Southworth v. Treadwell, 168 Mass. 511, 47 N.E. 93; Lally v. Lally, 152 Wisc. 56, 138 N.W. 651.
"In the instant case the agreements, which by the consent of the parties, and no doubt at the instance of appellant, were incorporated in the decree as a proper provision of alimony, became merged in the decree when entered, and thereupon lost their contractual nature, at least, to the extent that the court has the power to change and modify the decree, upon the application of either party, when a change of circumstances justifies the modification." Herrick v. Herrick, supra, 149 N.E. at p. 823.
This is one of the cases cited with approval by this court inWarrington v. Warrington, supra. We think that the ruling in the Herrick case did not at all imply that the court could later modify provisions of the agreement relative to the division of property once they had been approved. It only meant that the portion of the contract and decree relative to future installment payments in the nature of alimony was subject to future order of the court.
In each of the following cases we find that there was an agreement presently executed or presently to be *Page 49
executed concerning the property rights of the wife, plus an executory agreement for periodic payments for the wife's maintenance supported by consideration and approved by the divorce decree. Yet, in each case it was held that the portion of the contract and decree relating to periodic payments should be modified upon showing of changed conditions. Aldrich v.Aldrich, 166 Mich. 248, 131 N.W. 542; Skinner v. Skinner,205 Mich. 243, 171 N.W. 383; Puckett v. Puckett (Cal.)127 P.2d 54; Maginnis v. Maginnis, 323 Ill. 113, 153 N.E. 654; Plotkev. Plotke, 177 Ill. App. 344; Wilson v. Wilson, 186 Ark. 415,53 S.W.2d 990; Reynolds v. Reynolds, 53 R.I. 326,166 A. 686; Wilson v. Caswell, 272 Mass. 297, 172 N.E. 251; Eddy v.Eddy, 264 Mich. 328, 249 N.W. 868; Brown v. Brown,209 Mo. App. 416, 239 S.W. 1093; 27 C.J.S. 986 § 238-d; and see cases cited in 58 A.L.R. 639, note, and 109 A.L.R. 1068 note.
It further appears that where by statute the court has power to modify executory provisions it will retain that power although the agreement of the parties and the decree of the court provide that the original allowance shall never be changed.Kelly v. Kelly, 194 Mich. 94, 160 N.W. 397. Although there are conflicting decisions upon substantially every question relating to the power of courts to modify divorce decrees for future payments, we find in the above cited cases an underlying principle which may be stated as follows: An agreement of the parties approved as fair in the divorce decree may provide for a division of property rights and also for the payment of future installments for maintenance. Although both provisions be included in the same instrument they may be treated as separable, the provisions for division of the property being binding and beyond the power of the court to *Page 50
modify, the provisions concerning future installments for maintenance being, however, subject to modification in the event of changed conditions. The many authorities cited can be explained upon no other theory than that the executory provisions are to be deemed separable from the provisions relative to the division of property. As to the executory provisions, the parties are deemed to have contracted in view of the statute authorizing modification thereof. There is sound reason in support of this principle. The presently executed provisions of the property settlement are approved by the court as of the date of the final decree, and as to them the possibility of future changes in the financial condition of the parties becomes immaterial. The executory provisions of the decree, however, are to be performed under conditions which may be wholly different from those prevailing at the date of the decree, and consequently the same equitable power which, when exercised in the original decree, may reject a previously made contract for the division of property if deemed unfair, as in Hill v. Hill, supra, may also, subject to the exceptions previously noted, reject and modify a final decree when conditions have arisen which did not exist when that decree was made but which do exist when its terms are to be executed.
In the light of the authorities cited, we can now examine the question whether the decree for continuing maintenance should be declared to be a valid claim against the estate of Glenn E. Prime, deceased. The contract provided for payment to the wife of $35 per month "until death or remarriage." The decree provided that said settlement was fair and is approved, "and that said settlement shall forever remain binding upon the parties to this suit." We cannot dispose of the *Page 51
question by holding that the parties did not in fact intend to bind the estate if defendant predeceased the plaintiff.
The following authorities indicate that as a matter of pure construction, unaffected by any consideration of the court's power of modification, the decree in the case at bar would indicate an intention to bind the husband's estate if the wife should outlive him. Jennings v. First National Bank, 116 W. Va. 409, 180 S.E. 772, 100 A.L.R. 494; Barnes v. Klug, 129 A.D. 192,113 N.Y.S. 325; Farrington v. Boston Safe Deposit Trust Co., 280 Mass. 121, 181 N.E. 779. It appears that the express words employed do manifest such an intent, although it is held that no decree should be given that construction unless it clearly appears that such was the intent of the court. 27 C.J.S. p. 1000 § 240-b, notes 16, 17 and 18. Murphy v. Shelton,183 Wash. 180, 48 P.2d 247. The right to receive alimony and the corresponding duty to pay it are generally considered to have terminated on the death of either of the two parties, at least where no statute to the contrary exists, and the judgment or decree is silent on the subject. 37 C.J.S. p. 999, § 240-b.
But assuming that the decree manifested an intention to bind the husband's estate, the question remaining for decision is whether or not it should be given that effect. The contract of the parties does not show that the agreed installments were in fact deferred payments for any property owned or contributed by the wife, nor did the court in the divorce decree approve the installments on any such theory. It is true that there was consideration in the property settlement of the parties. The evidence presented in this suit for declaratory judgment discloses that the defendant *Page 52
stripped himself of substantially all his property by the agreement in question, but it also indicates that he did retain a small tract of wild land of undetermined value, and it follows that the wife by virtue of the agreement waived an inchoate right of dower in such land. Even if some such inchoate right incidental to the marriage relationship was waived, still we think that the provision for monthly payments was a severable one in the nature of alimony and was, during the lifetime of the husband, subject to modification upon proof of changed conditions. If that is true, then we can see no reason why that portion of a decree which is subject to modification during the life of the husband should become forever binding upon his estate when he dies. If the provision for monthly payments is to be viewed as in the nature of alimony, and we so hold, then the question is whether the court has power to extend such payments beyond the lifetime of the defendant. Upon this question, there is a conflict of authority. The following cases support the view that a decree unsupported by contract may validly impose an obligation to pay alimony which will bind the defendant's estate:Farrington v. Farrington, supra, Southard v. Southard,262 Mass. 278, 159 N.E. 512; Hale v. Hale, 108 W. Va. 337,150 S.E. 748; Murphy v. Shelton, supra; Gunderson v. Gunderson,163 Minn. 236, 203 N.W. 786; Murphy v. Moyle, 17 Utah 113,53 P. 1010, 70 Am. St. Rep. 767; Pingree v. Pingree, 170 Mich. 36,135 N.W. 923. Most of these cases are based upon statutes broader than ours which authorize discretionary decrees concerning the"estate" and maintenance of the wife. There is very substantial authority to the effect that the court cannot by divorce decree extend the obligation of support in the nature of alimony so as to bind the husband's estate. Wilson v. Hinman, *Page 53 182 N.Y. 408, 75 N.E. 236, 2 L.R.A. (N.S.) 232, 108 Am. St. Rep. 820; Daggett v. Commissioner of Internal Revenue,128 F.2d 568 at 574; Roberts v. Higgins, 122 Cal. App. 170,9 P.2d 517; 27 C.J.S. p. 999, § 240, note 14; 101 A.L.R. 324, par. 3 et seq., citing authorities on both sides.
In Mansfield v. Hill, 56 Or. 400, 107 P. 471, 108 P. 1007, a divorce decree required the husband to pay to the wife for the support and education of the children, $15 each month "until thefurther order of the court." (Italics ours.) The court held that the decree constituted a continuing liability against the husband's estate. It certainly has not been the practice in this state to construe a decree for alimony, when thus qualified, as binding the husband's estate. As a matter of constructionMansfield v. Hill is wrong and must be overruled, there being no clear expression of intention to bind the estate. As a matter of substantive law and under our statute, the decision is of doubtful validity. The estate of a deceased husband is not generally liable for the support of minor children. They may be disinherited by his will. Whence comes a power to bind that estate" The only authorities cited by Mr. Justice Aikin inMansfield v. Hill were based on statutes wholly dissimilar to ours and which authorized alimony "out of the estate" of the husband. There is no similar provision in O.C.L.A. 9-914, which provides, "for the recovery from the party at fault such an amount of money in gross or installments as may be just and proper" (Italics ours) for the maintenance of the other. If the trial court in the absence of any contract would have had the power to bind the husband's estate to the payment of alimony, then it also would have had the power to modify the decree after his death. Hale v. *Page 54 Hale, 108 W. Va. 337, 150 S.E. 748 at 749; Gunderson v.Gunderson, supra; Pingree v. Pingree, supra; Kirkbride v. VanNote, 275 N.Y. 244, 9 N.E.2d 852, 112 A.L.R. 243; 27 C.J.S. p. 1091 § 277-b, note 8. Consequently, a declaratory judgment establishing a continuing liability for the life of the wife would be inappropriate. If, as we think, the court had no such power under our statute, then the provision of the decree for alimony would end with the life the defendant, regardless of the language used by the court. Roberts v. Higgins, supra; Wilsonv. Hinman, supra; Johns v. Johns, 166 N.Y. 613, 59 N.E. 1124.
The fact that the divorce court in the absence of contract may have no power by decree to bind the deceased husband's estate to pay alimony does not necessarily imply that the parties are without power to do so or that the court may not approve such agreement in the decree. As said by the editors of A.L.R.:
"* * * it is generally recognized that the husband may, under a separation agreement, provide for periodic payments during the life of the wife so as to make such payments a continuing charge on his estate after his death." 100 A.L.R. 500, citing many cases.
Our point is that the same tests which determine the power of the court to modify an executory provision of the decree during the life of the parties should also determine whether or not such a decree shall bind the estate of the husband after his death. If, during the life of the parties, the provision of the decree be found to be in the nature of alimony and therefore subject to modification even if supported by contract, then the same considerations will establish that such a separable executory provision retains the character of *Page 55
alimony and ends with the life of the husband. Such contractual provisions for periodic payments must be deemed to have been merged in the decree and made in contemplation of the statute authorizing modification and equally to have been made in contemplation of the rule of our law that payment of that character ends with the death of the husband.
We hold that the provision of the decree requiring payment of $35 per month for the life of the wife, although supported by contract, has not been shown to be payment for any property of the wife in the nature of an annuity and was not approved by the court as such, but is, on the contrary, a stipulation for payment in the nature of alimony subject to modification during the life of the parties and terminating on the death of the defendant.
The foregoing disposes of a question of great interest to the profession but of little concern to the parties, since it was brought here by none of them except the executor, who was in the position of a stakeholder.
The second and strongly contested issue relates to the matter of mutual wills, executed by Glenn E. Prime and Edith B. Prime, his wife. On February 4, 1935, they executed a joint will containing, among others, provisions which we shall briefly summarize. All debts and funeral expenses were to be fully paid. The second and critical paragraph of the will provided, "Our joint estate consists of real and personal property in the state of Oregon, namely, * * *." Seven separate items are then specified. The first six designate in most general terms items of real or personal property, such as "a service station", "a residence in Salem, Marion County, Oregon", and the *Page 56
like. The last item, with which we are particularly concerned, is as follows: "life insurance." It was then provided that "said real and personal property may change during our lifetime to other real or personal property." None of the seven items mentioned in the will as belonging to the joint estate was sufficiently described to make identification possible without extrinsic evidence. The will then provided:
"The above property, both real and personal, at the time of the death of either of us, shall be held by our joint executor, hereinafter named, during the life-time of the survivor of us, and the use and income thereof to be enjoyed by such survivor as he or she may deem best during the remainder of the life of such survivor, to be paid by our executor and trustee hereinafter named."
The fourth paragraph provided that upon the death of either of the signers the survivor shall convey all the joint property so as to form a trust for the survivor during his or her lifetime and for the minor children of Glenn E. Prime, "and said survivor, and executor and trustee hereinafter named shall see that said children are properly educated." Upon the death of the survivor, after the payment of debts, the property was to be held in trust for said minor children, Glenn E. Prime, Jr., and Mary Jean Prime, who were the son and daughter, respectively, of Glenn E. Prime, and his former wife, Velma Prime, the plaintiff herein. Numerous other provisions related to the appointment of an executor or trustee, the guardianship of the children, and the like. The complaint of Velma E. Prime, divorced wife of Glenn E. Prime, deceased, describes in detail the real property referred to in the will as joint property and alleges that the same is in the possession of the defendant, Edith B. Prime, who *Page 57
claims to be the owner of it. Plaintiff then prays for a declaration by the court that by virtue of the joint will Edith B. Prime became liable for all payments due or to become due under the property settlement between Glenn E. Prime and his former wife, Velma E. Prime, the plaintiff herein, and for a decree requiring Edith B. Prime and the Pioneer Trust Company to set up the trust estate provided for in the will out of the property referred to in the will as the "joint estate." Upon the issues made by the complaint and the answer of Edith B. Prime the cause was tried, and the trial court held that the joint will was void as respects Edith B. Prime and that the real estate described in the will as joint property belonged to Edith B. Prime. The plaintiff, Velma E. Prime, and her two children, Mary Jean Prime and Glenn E. Prime, Jr., appeal.
The evidence discloses that the real property which was adjudged to belong to Edith B. Prime had been owned by her and her husband as tenants by the entirety. But for the joint will, it is clear that the property would have belonged to Edith B. Prime as surviving tenant upon the death of her husband. Not only was the real property thus held, but in truth after Glenn E. Prime had been divorced from the plaintiff, Velma E. Prime, and when in June, 1931, he married Edith B. Prime, he had little or no property, and his debts undoubtedly equalled his modest assets. On the contrary, Edith B. Prime brought to the marriage approximately $13,000 in cash, and it was her money invested and reinvested, coupled with the business acumen of herself and her husband, that produced the property that stood in their joint names as tenants by the entirety. After the death of her husband, Edith B. *Page 58
Prime refused to convey the property to the trustee, and this proceeding resulted. An analysis of the evidence, which is in conformity with her pleading, will disclose the reason for her refusal.
At the trial, the plaintiff, Velma E. Prime, introduced the will and offered extrinsic evidence to identify each of the first six items mentioned in the will as "joint property," but she did not attempt to identify the seventh item which was life insurance. There was no insurance actually appearing on its face to be joint property of the parties to the will; consequently the defendant Edith B. Prime undertook to show to what insurance the will referred. This was exactly what the plaintiff had done as to the first six items mentioned in the will. The defendant objected to any evidence tending to alter the terms of the will,
"* * * except that would be necessary to explain ambiguities or indefiniteness appearing in the instrument itself."
Counsel further stated,
"Our objection goes to any testimony which does not have to do directly with the problem of what is meant by the term `life insurance' in this will."
Over this objection the court received testimony which convincingly disclosed that at the time of the execution of the joint will there was outstanding insurance in the amount of $23,000 on the life of Glenn E. Prime, payable to his children, but subject to the right of the insured to change the beneficiaries. He also owed debts to the amount of $13,000. The will was executed after a long discussion at which the only persons present were Glenn E. Prime, Edith B. Prime and Robin D. Day, who was then attorney for Glenn E. Prime, *Page 59
and who appears in this case as attorney for the Pioneer Trust Company, the executor of the last will and testament of Glenn E. Prime. The defendant, Edith B. Prime, testified in detail and at length concerning the discussion which was had at that time. Her testimony was corroborated by that of Robin D. Day. Their testimony is uncontradicted, and may be summarized briefly. Glenn E. Prime desired that the real property should, upon the death of himself and his wife, go to his two children by his former marriage. In view of the fact that the real estate was the product and increment from the $13,000 which Edith B. Prime had brought to the marriage and of the further fact that they were then indebted in the approximate amount of $13,000, a considerable portion of which had been incurred by Glenn E. Prime prior to their marriage, Edith B. Prime was unwilling to place the joint real estate in a trust fund for the children unless the insurance on the life of Glenn E. Prime was also to be made a part of that fund. It was therefore agreed that the beneficiaries of the life insurance of Glenn E. Prime would be changed so that the $23,000 should go into the trust fund. The debts were to be paid from this insurance, and the balance, along with the income from the real property, was to inure to the benefit of Edith B. Prime during her lifetime, and the principal as well as all of the real estate was to go to the children upon the death of Edith B. Prime. It was upon this understanding that Robin D. Day inserted the seventh item "life insurance" in the joint will as a part of the joint estate of the husband and wife. There was also a smaller policy of life insurance upon the life of Edith B. Prime, but there is no hint in the testimony that the provision of the will referred to that policy, and it conclusively *Page 60
appears that the seventh item in the will was intended to describe $23,000 in insurance on the life of Glenn E. Prime. The testimony further shows that Glenn E. Prime, on the day that the will was executed, called his insurance agent with reference to a change in the beneficiaries of the policies, although it is not clear that he made contact with the agent at that time. Edith B. Prime and Robin D. Day both believed that the transfer had been made and that the life insurance had become a part of the joint estate. The fact, which was discovered only after the death of Glenn E. Prime, is that no change was made in the beneficiaries of the policies, and the $23,000 of life insurance was paid directly to the children of Glenn E. Prime and Velma E. Prime, his former wife.
Two simple rules of law are sufficient to justify the ruling of the trial court in receiving the evidence which we have summarized. O.C.L.A. 2-214, which contains the legislative statement of the parol evidence rule, provides further,
"But this section does not exclude other evidence of the circumstances under which the agreement was made, or to which it relates, as defined in section 2-218, or to explain an ambiguity, intrinsic or extrinsic * * *. The term `agreement' includes deeds and wills as well as contracts between parties."
Section 2-218 provides as follows:
"For the proper construction of an instrument, the circumstances under which it was made, including the situation of the subject of the instrument, and of the parties to it, may also be shown, so that the judge be placed in the position of those whose language he is to interpret." *Page 61
The character of the testimony and the surrounding circumstances satisfy us of the truth thereof, and we are therefore convinced that the seventh item listed as a part of the joint estate referred to the insurance on the life of Glenn E. Prime. Even if we should credit Edith B. Prime with a veritable plethora of benevolence, it can scarcely be believed that she would agree that all of the property which was the product of her life savings should be tied into a trust fund for the benefit of the children of her husband's divorced wife, that she should be obligated to pay $13,000 of his debts, that she should assume the responsibility of paying $35 a month to the former wife of her husband during the life of such wife, and that she should, according to the words of the will, see that said children (the children of Velma E. Prime) are properly educated, while at the same time agreeing that the only substantial asset belonging to her husband, namely, his life insurance, should be paid directly to the two children.
The provision of the will was ambiguous. Convincing testimony identified the joint property described as "life insurance." Glenn E. Prime, by failing to provide that the proceeds of his life insurance should go into the joint estate, breached the contract which was to be found in the joint will in a substantial particular, and Edith B. Prime was thereby released from any obligation thereunder. The children received $23,000 of life insurance. Edith B. Prime as survivor of a tenancy by the entirety became the owner in fee of the real property so held.
"A breach or non-performance of a promise by one party to a bilateral contract, so material as to justify a refusal of the other party to perform a contractual duty, discharges that duty." Restatement of the Law of Contracts, § 397; and see §§ 274, 275. *Page 62
Various additions and amendments to the descriptions of the joint property were made at the time of the trial, but we were assured at the argument before this court that the descriptions as contained in the decree of the circuit court are correct. We were further assured that there is an inadvertent or typographical error in that portion of the decree which reads as follows:
"It is further ordered, adjudged and decreed by the court that plaintiff is the owner of 200 shares of the capital stock of the Iron Fireman Company * * *."
The word "plaintiff" should be changed to the word "cross-complainant" so it will refer to Edith B. Prime and not to the plaintiff, Velma E. Prime. Edith B. Prime is entitled to her costs and disbursements against the defendants, Velma E. Prime, Mary Jean Prime and Glenn E. Prime, Jr. No costs should be awarded to or against the Pioneer Trust Company.
Upon the appeal of the Pioneer Trust Company, that portion of the judgment which holds that the estate of Glenn E. Prime is liable to pay alimony to Velma E. Prime is reversed. The decree in favor of Edith B. Prime is affirmed. *Page 63
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01-03-2023
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07-06-2016
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https://www.courtlistener.com/api/rest/v3/opinions/4059487/
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UNITED STATES, Appellee
v.
Dana P. BLOUIN, Specialist
U.S. Army, Appellant
No. 14-0656
Crim. App. No. 20121135
United States Court of Appeals for the Armed Forces
Argued February 10, 2015
Decided June 25, 2015
ERDMANN, J., delivered the opinion of the court, in which STUCKY
and OHLSON, JJ., joined. BAKER, C.J., filed a dissent in which
RYAN, J., joined.
Counsel
For Appellant: Captain Heather L. Tregle (argued); Colonel
Kevin Boyle, Lieutenant Colonel Jonathan F. Potter, and Major
Aaron R. Inkenbrandt (on brief); Major Jacob D. Bashore, and
Captain Brian J. Sullivan.
For Appellee: Captain Benjamin W. Hogan (argued); Colonel John
P. Carrell (on brief); Major A. G. Courie III, and Captain
Samuel Gabremariam.
Military Judge: Michael J. Hargis
This opinion is subject to revision before final publication.
United States v. Blouin, No. 14-0656/AR
Judge ERDMANN delivered the opinion of the court.
Specialist (E-4) Dana P. Blouin was charged with possession
of child pornography as defined in 18 U.S.C. § 2256(8), in
violation of Article 134(1), Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 934 (2006). Consistent with his plea,
Blouin was convicted of the charge by a military judge sitting
as a general court-martial. The military judge sentenced Blouin
to a bad-conduct discharge, six months of confinement, and a
reduction to E-1. The convening authority approved the sentence
as adjudged. The United States Army Court of Criminal Appeals
(CCA) affirmed the findings and sentence. United States v.
Blouin, 73 M.J. 694, 699 (A. Ct. Crim. App. 2014). We granted
review to determine whether the military judge erred in
accepting Blouin’s guilty plea. 1 We hold that the record
reflects a substantial basis in law and fact for questioning the
plea and therefore reverse the CCA.
1
We granted review of the following issue:
Whether the military judge erred by accepting
Appellant’s pleas of guilty to the specification of
the charge where Prosecution Exhibit 4 demonstrated
that the images possessed were not child pornography.
United States v. Blouin, 74 M.J. 55 (C.A.A.F. 2014) (order
granting review).
2
United States v. Blouin, No. 14-0656/AR
Background
During the providence inquiry, the military judge provided
Blouin with the following relevant definitions from 18 U.S.C.
§ 2256:
The phrase “child pornography” means any visual
depiction, including any photograph, film, video,
picture, or computer, or computer-generated image or
picture, whether made or produced by electronic,
mechanical, or other means, of sexually explicit
conduct where the production of such visual depiction
involves the use of a minor engaging in sexually
explicit conduct; such visual depiction is a digital
image, computer image, or computer-generated image
that is, or is indistinguishable from, that of a minor
engaging in sexually explicit conduct; or such visual
depiction has been created, adapted, modified to
appear that an identifiable minor is engaging in
sexually explicit conduct.
Except as noted below, the phrase, “sexually
explicit conduct” means actual or simulate [sic],
. . . lascivious exhibition of the genitals or pubic
area of any person.
When the visual depiction is a digital image,
. . . the phrase "sexually explicit conduct" means
. . . graphic or simulated lascivious exhibition of
the genitals or pubic area of any person.
. . . .
“Graphic”, when used with respect to depiction of
sexually explicit conduct, means that a viewer can
observe any part of the genitals or pubic area of any
depicted person or animal during any part of the time
that the sexually explicit conduct is being depicted.
Now, Specialist Blouin, do you understand the
elements and definitions of this offense as I’ve read
them to you?
[Blouin]: Yes, sir.
3
United States v. Blouin, No. 14-0656/AR
MJ: And I know that’s a lot to digest. Do you
understand what I’ve just told you?
[Blouin]: Yes, sir.
MJ: Do you have any questions about what I just told
you?
[Blouin]: No, sir.
MJ: Do you understand that your plea of guilty admits
that these elements accurately describe what you did?
[Blouin]: Yes, sir.
MJ: Do you believe and admit that the elements and
the
definitions taken together do describe what you did?
[Blouin]: Yes, sir.
The military judge went on to discuss the images viewed by
Blouin and asked him to describe why the images constituted
lascivious exhibitions of the genitals or pubic area. In
response, Blouin described two of the images in detail. In
questioning Blouin about the images, the military judge asked
him on several occasions whether the genitals or pubic area were
visible “even though clothed.” Blouin agreed that the areas in
question were clothed.
At the close of the inquiry, the military judge accepted
Blouin’s guilty plea. However, during sentencing the military
judge reviewed Prosecution Exhibit 4, a compact disk which
contained the twelve images of purported child pornography to
which Blouin had pleaded guilty to possessing. Based on his
review, the military judge reopened the providence inquiry.
4
United States v. Blouin, No. 14-0656/AR
The military judge asked Blouin whether the images that he
had described during the providence inquiry were contained in
Prosecution Exhibit 4. Blouin responded that they were. The
military judge then asked whether Blouin had opened all the
images and Blouin responded that he had. Blouin then reasserted
that he thought the twelve images constituted child pornography
consistent with the definitions that the military judge had
provided.
However, the military judge then held:
Counsel, having to [sic] review Prosecution Exhibit 4,
I only find three images of child pornography. I find
image 1229718342693.JPEG, image 1229720242042.JPEG,
and image 122972147928l.JPEG meet the definition of
child pornography. The balance of the images on
Prosecution Exhibit 4 do not meet that definition.
Given further inquiry, I do believe that the accused
is guilty of the offense as charged and I stand by my
findings. Although as to those three images, I think
counsel would be wise to review [United States vs.
Knox 32 F.3d 733 (3d Cir. 1994)], that it can be a
lascivious exhibition even if the genitals and the
pubic area are clothed. So, I stand by my findings.
On appeal before the CCA, Blouin asserted that the three
images for which he was found guilty did not meet the definition
of child pornography set forth in 18 U.S.C. § 2256(8). The CCA
rejected Blouin’s argument and affirmed the conviction. Blouin,
73 M.J. at 695. In affirming Blouin’s conviction, the CCA:
endorse[d the] reference to Knox in the Benchbook
[and] offer[ed its] decision to establish precedent on
a subject not yet directly addressed in a published
opinion in our jurisdiction, and hold that nudity is
not required to meet the definition of child
pornography as it relates to the lascivious exhibition
5
United States v. Blouin, No. 14-0656/AR
of genitals or pubic area under Title 18 of the United
States Code or Article 134, UCMJ.
73 M.J. at 696.
Discussion
Before this court, Blouin again asserts that the three
images for which he was found guilty of possessing child
pornography do not meet the statutory definition of 18 U.S.C.
§ 2256(8). Blouin also contends that, despite finding he was
incorrect as to what constituted child pornography in nine of
the twelve images in Prosecution Exhibit 4, the military judge
failed to ensure that he understood why those images did not
meet the definitions. Blouin further argues that the military
judge and the CCA erred in adopting the rationale of Knox II. 2
The government counters that this court should adopt Knox
II for the proposition that nudity or discernibility of the
genitalia or pubic area is not required to establish whether an
image is “graphic” as defined in 18 U.S.C. § 2256. The
government further argues that, even if this court does not
adopt Knox II, the photographs at issue nevertheless meet the
definition of graphic as well as the factors used to determine
what constitutes a lascivious exhibition as set forth in United
States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986).
2
There are two relevant Knox decisions from the United States
Court of Appeals for the Third Circuit: United States v. Knox,
977 F 2d. 815, (3d Cir. 1992), vacated and remanded, 510 U.S.
939 (1993) (Knox I); United States v. Knox, 32 F.3d at 736, (3d
Cir. 1994) (Knox II).
6
United States v. Blouin, No. 14-0656/AR
18 U.S.C. § 2256 -- Definitions
In 2003, 18 U.S.C. § 2256 was amended by Congress in
response to the Supreme Court’s decision in Ashcroft v. Free
Speech Coal., 535 U.S. 234 (2002). See United States v.
Williams, 553 U.S. 285, 289 (2008) (“After our decision in Free
Speech Coal., Congress went back to the drawing board . . . .”);
see also S. Rep. No. 108-2, at 1; H.R. Rep. No. 108-66, at 30.
Congress altered the statute in order to limit the “virtual
child” defense being successfully used in the wake of Ashcroft,
while maintaining the statute’s constitutionality. S. Rep. No.
108-2, at 4-7, 13 (“S. 151 is designed to aid child pornography
prosecutions in a constitutionally responsible way.”).
Congress did this, in part, by amending the definition of
“child pornography” found 18 U.S.C. § 2256(8). 3 Subsection
3
18 U.S.C. § 2256(8) provides:
“child pornography” means any visual depiction, including
any photograph, film, video, picture, or computer or
computer-generated image or picture, whether made or
produced by electronic, mechanical, or other means, of
sexually explicit conduct, where --
(A) the production of such visual depiction involves the
use of a minor engaging in sexually explicit conduct;
(B) such visual depiction is a digital image, computer
image, or computer-generated image that is, or is
indistinguishable from, that of a minor engaging in
sexually explicit conduct; or
(C) such visual depiction has been created, adapted, or
modified to appear that an identifiable minor is engaging
in sexually explicit conduct.
7
United States v. Blouin, No. 14-0656/AR
(8)(A) contains the original language of the statute and makes
criminal any photograph, film, video, or picture of actual
children engaging in sexually explicit conduct. Congress added
subsections (B) and (C) as the result of the 2003 amendments. 4
Subsection (B) makes criminal digital images of either actual
children or those indistinguishable from actual children
engaging in sexually explicit conduct. Congress also added the
requirement in subsection (B) that, in addition to being
lascivious, all digital images must be “graphic,” which means
that a “viewer can observe any part of the genitals or pubic
area of any depicted person.” S. Rep. No. 108-2, at 6-7, 13.
The more onerous “graphic” requirement applies only to digital
images because of the constitutional danger that the images
might not be of actual children. Id.
The distinctions between the subsections are not
inconsequential. For example, if an accused were charged under
subsection (A), the government would not need to prove the
images at issue were “graphic,” but would need to prove the
images were of real children. Compare 18 U.S.C. § 2256(8)(A),
with 18 U.S.C. § 2256(8)(B). If charged under subsection (B),
the government would need to prove the digital images were both
4
Subsection (C), which makes criminal images which have been
“morphed” or altered in such a way as to appear that an
identifiable minor is engaging in sexually explicit conduct, is
not at issue in this appeal.
8
United States v. Blouin, No. 14-0656/AR
graphic and lascivious, but would not be required to show the
minors were actual children. Id.
United States v. Knox
The military judge and the CCA both relied on Knox II for
the principle that a conviction under 18 U.S.C. § 2256 does not
require images that contain nudity. In its opinion, the CCA
noted that its adoption of the Knox II standard was to
“establish precedent on a subject not yet directly addressed in
a published opinion in our jurisdiction.” Blouin, 73 M.J. at
697. We decline to accept the CCA’s invitation to adopt the
Knox II standard as controlling precedent in this jurisdiction.
In Knox I, the issue was whether, “videotapes that focus on
the genitalia and pubic area of minor females constitute an
‘exhibition of the genitals or pubic area’ under the federal
child pornography laws, even though those body parts are covered
by clothing.” 977 F.2d at 817 (citations omitted). The Third
Circuit held that “such visual depictions do qualify as an
exhibition.” Id. On appeal to the Supreme Court, the solicitor
general argued that “the plain language of the statute
require[ed] the genitals or pubic area exhibited to be at least
somewhat visible or discernible through the children’s
clothing.” Knox II, 32 F.3d at 737. The Supreme Court remanded
the case to the Third Circuit and ordered the court to
reconsider its opinion in light of the government’s argument.
9
United States v. Blouin, No. 14-0656/AR
Id. Despite the position of the solicitor general, on remand
the Third Circuit again held that the “federal child pornography
statute, on its face, contains no nudity or discernibility
requirement, that non-nude visual depictions, such as the ones
contained in this record, can qualify as lascivious
exhibitions.” Id.
There are several problems with the lower courts’ reliance
on Knox II in the present case. Initially, Knox II was decided
in 1994 and 18 U.S.C. § 2256 was amended in 2003. The 2003
amendments added the “graphic” requirement for digital images.
See Pub. L. No. 108-21, § 502(c) (2003). Accordingly, “the
requirement that lascivious exhibitions be ‘graphic’ under the
PROTECT Act’s amended obscenity definition likely eliminates a
Knox result under the obscenity statute.” United States v.
Williams, 444 F.3d 1286, 1299 n.63 (11th Cir. 2006).
In addition, despite the CCA’s assertion to the contrary,
at least two federal circuits have undermined Knox II, including
the Third Circuit itself. See United States v. Vosburgh, 602
F.3d 512, 538 (3d Cir. 2010) (noting in a prosecution for
possessing child pornography that images of “child erotica” were
legal); United States v. Gourde, 440 F.3d 1065, 1070 (9th Cir.
2006) (recognizing that adult pornography and child erotica
constitute “legal content”); see also United States v. Warner,
73 M.J. 1, 3 (C.A.A.F. 2013) (“Title 18 of the United States
10
United States v. Blouin, No. 14-0656/AR
Code addresses at length and in considerable detail the myriad
of potential crimes related to child pornography, these sections
provide no notice that possession of images of minors that
depict no nudity, let alone sexually explicit conduct, could be
subject to criminal liability.”); United States v. Roderick, 62
M.J. 425, 429 (C.A.A.F. 2006). Finally, neither the CCA nor the
government have cited any case which has adopted the rationale
of Knox II as applied to 18 U.S.C. § 2256(8)(A)-(C) after its
2003 amendment. 5 Accordingly, the military judge and the CCA
adopted an erroneous view of the law when they relied on Knox II
to support their decisions.
Providence of the Plea
We review a military judge’s acceptance of a guilty plea
for an abuse of discretion. United States v. Finch, 73 M.J.
144, 148 (C.A.A.F. 2014), cert. denied, 135 S. Ct. 98 (2014).
“If an accused sets up matter inconsistent with the plea at any
time during the proceeding, the military judge must either
resolve the apparent inconsistency or reject the plea.” United
States v. Moon, 73 M.J. 382, 386 (C.A.A.F. 2014). In reviewing
5
The only post-2003 case cited by the government and the CCA is
Williams, 444 F.3d at 1299 n.63. The issue in Williams was a
pandering charge, which is not analogous to the charge in this
case. Indeed, as noted above, Williams actually held that “the
PROTECT Act’s amended obscenity definition likely eliminates a
Knox result under the obscenity statute.” Id. However, as
there is no consensus by the federal circuit courts on Knox II,
or even within the Third Circuit, we look to our precedent. See
Warner, 73 M.J. at 3; Roderick, 62 M.J. at 429.
11
United States v. Blouin, No. 14-0656/AR
a military judge’s decision to accept a guilty plea, “we apply
the substantial basis test, looking at whether there is
something in the record of trial, with regard to the factual
basis or the law, that would raise a substantial question
regarding the appellant’s guilty plea.” United States v.
Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). “Additionally,
any ruling based on an erroneous view of the law also
constitutes an abuse of discretion.” Id. Finally, we have long
held that any guilty plea must be both knowing and voluntary.
See United States v. Care, 18 C.M.A. 535, 538-39, 40 C.M.R. 247,
250-51 (1969). Citing to Care, this court has held that “[t]he
providence of a plea is based not only on the accused’s
understanding and recitation of the factual history of the
crime, but also on an understanding of how the law relates to
those facts.” United States v. Medina, 66 M.J. 21, 26 (C.A.A.F.
2008).
The military judge provided Blouin with three mutually
exclusive definitions reflecting the three subsections of
18 U.S.C. § 2256(8) but he was not advised as to which of the
three subsections he was charged with. Indeed, the military
judge’s instructions, the charge sheet, the plea inquiry, the
pretrial agreement, and the stipulation of fact all fail to
establish which subsection Blouin was charged under and which
subsection he pled guilty to. As noted earlier, the
12
United States v. Blouin, No. 14-0656/AR
distinctions between the subsections are not inconsequential and
nowhere in the record is this inconsistency clarified. To be
clear, it is not necessary for the charge or plea inquiry to
specify a subsection under 18 U.S.C. § 2256 if the applicable
subsection is clear from the record and there is no
inconsistency. However, in this case, without knowledge of
which subsection he was pleading guilty to, Blouin could not
have an understanding as to how the law related to his factual
admissions.
Further, after accepting Blouin’s plea to all twelve images
contained in Prosecution Exhibit 4, the military judge reviewed
the images. Based upon that review, he determined that Blouin
had pled guilty to possessing nine images of purported child
pornography which did not meet the definitions in 18 U.S.C.
§ 2256. Despite this indication that Blouin had not understood
the definitional instructions, the military judge failed to
advise Blouin why the nine images failed to qualify as child
pornography. Nor did the military judge take any steps to
ascertain why Blouin believed the remaining three images did
constitute child pornography while the nine images did not. Due
to the inconsistencies in the manner in which the offenses were
explained to Blouin, combined with the military judge’s failure
to make further inquires once he ruled that nine of the images
to which Blouin had already pleaded guilty did not constitute
13
United States v. Blouin, No. 14-0656/AR
child pornography, there exists a substantial basis in law and
fact to question the providence of the guilty plea.
Decision
The decision of the United States Army Court of Criminal
Appeals is reversed and the findings and sentence are set aside.
The record is returned to the Judge Advocate General of the
Army. A rehearing is authorized.
14
United States v. Blouin, No. 14-0656/AR
BAKER, Chief Judge, in which RYAN, J., joins (dissenting):
This is a guilty plea case. The question presented is
whether there is a substantial basis in law or fact to question
the plea. Appellant admitted to possessing child pornography.
He further admitted that at least one of these pictures depicted
a “lascivious exhibition of the genitals or pubic area.” The
military judge confirmed through his own review that at least
one such picture did in fact constitute child pornography as
defined in subsection 8(A). Nonetheless, the majority concludes
that Appellant’s plea is improvident because the military judge,
who had not seen all 173 images of “likely child pornography”
found in Appellant’s possession, initially provided Appellant
the definitions of child pornography corresponding to
subsections 8(A) and 8(B) of the Child Pornography Prevention
Act (CPPA). The military judge during sentencing subsequently
concluded that some of the pictures in question did not meet the
definition of child pornography, without clearly stating whether
he was applying the definition applicable to subsection 8(A) or
8(B). Thus, the majority concludes, Appellant, who was trying
to plead guilty to possessing child pornography, did not
providently do so because he could not be certain which kind of
child pornography he was guilty of possessing, subsection 8(A)
child pornography or subsection 8(B) child pornography, and
whether the pictures satisfied one or both definitions.
United States v. Blouin, No. 14-0656/AR
The majority opinion rests on incongruous positions. The
majority concludes that Appellant’s plea was not provident
because the military judge failed to clarify the subsection of
the CPPA with which Appellant was being charged. At the same
time, in declining to adopt United States v. Knox (Knox II), 32
F.3d 733 (3d Cir. 1994), on the basis that it is inapplicable,
the majority assumes that the military judge applied subsection
8(B) of the CPPA. United States v. Blouin, __ M.J. __, __ (11-
14) (C.A.A.F.). This must be the case, as the majority does not
elaborate on why Knox II is inapplicable to subsection 8(A),
which contains identical language to the pre-2003 version of the
CPPA the Knox II court interpreted. I disagree with both the
majority opinion’s initial premise, and the conclusions it
reaches in reliance on this premise.
In the instant case, there is no “substantial basis in law
or fact for questioning the plea.” United States v. Passut, 73
M.J. 27, 29 (C.A.A.F. 2014) (citing United States v. Schell, 72
M.J. 339, 345 (C.A.A.F. 2013)). First, it is clear considering
the plea colloquy in its totality that the military judge was
applying subsection 8(A) of the CPPA. Further, although the
military judge may have caused nominal confusion by reopening
the plea colloquy, any uncertainty is not a substantial basis to
question the plea under the circumstances of this case.
Finally, the military judge did not err in applying Knox II
2
United States v. Blouin, No. 14-0656/AR
during the plea colloquy, as Knox II remains good law and
instructive as to the application of subsection 8(A) of the
CPPA.
For all these reasons, I respectfully dissent from this
Court’s opinion.
DISCUSSION
I. Appellant’s Guilty Plea to Subsection 8(A)
The majority opinion argues that there is a substantial
basis to question Appellant’s plea because the military judge
did not specify whether Appellant was charged under subsection
8(A) or 8(B) of the CPPA. As the majority opinion notes, the
military judge recited the definitions for two categories of
child pornography proscribed under subsections 8(A) and (B) of
the CPPA, without specifying which subsection was applicable.
However, which subsection applied, if any, depended on
Appellant’s knowledge of the pictures he possessed, and how he
described them to the military judge as part of the plea
colloquy. After Appellant described his conduct, it became
apparent that the military judge intended to, and was accepting,
a guilty plea to subsection 8(A), requiring Appellant to
stipulate to possessing child pornography using actual minors,
with no requirement that the images also be “graphic.”
During the plea colloquy, before the military judge
reviewed the sample photographs in Prosecution Exhibit 4 (PE 4),
3
United States v. Blouin, No. 14-0656/AR
the military judge provided the definition of child pornography
corresponding with charges brought under subsection 8(A), which
does not contain a “graphic” requirement:
MJ: Now, I gave you the definition of sexually
explicit conduct. Do you recall that definition?
ACC: Yes. . . .
MJ: Okay. Did any of the images involve children
engaging in sexual intercourse . . . either amongst
themselves or with adults?
ACC: No, sir.
MJ: Did any of them involve bestiality?
ACC: No, sir.
MJ: Did any of them involve masturbation?
ACC: No, sir.
MJ: Did any of them involve sadistic or masochistic
abuse?
ACC: No, sir.
MJ: The last category of sexually explicit conduct is
lascivious exhibition of the genitals or pubic area.
Now, what I hear you telling me is that’s the kind of
image that you downloaded either through Google or
P2P. Is that accurate?
ACC: Yes, sir.
The military judge’s description of “[t]he last category of
sexually explicit conduct” was taken verbatim from the
definition applicable to subsection 8(A). The military judge at
no point indicated during the plea colloquy that he was instead
applying the definition under subsection 8(B), which defines
4
United States v. Blouin, No. 14-0656/AR
“sexually explicit conduct” as “graphic or simulated lascivious
exhibition of the genitals or pubic area of any person.” 18
U.S.C. § 2256(2)(B)(iii) (emphasis added). Immediately after
providing this definition, the military judge proceeded to
discuss the two sample images described earlier. Even after
reviewing the sample images, the military judge again recited
the definition of child pornography applicable to subsection
8(A), asking Appellant: “Both these photographs that we’ve
talked about, do you believe that they were a lascivious
exhibition of the genitals or pubic area of the subject of the
photograph as I’ve described that term for you?” Yet again, the
military judge did not mention a “graphic” requirement.
In my view, the military judge’s repeated recitation of the
definition applicable to subsection 8(A), both before and after
analyzing the sample images, makes plain that Appellant was
pleading guilty to violating subsection 8(A), not subsection
8(B), of the CPPA. While the military judge could have
expressly stated that he was applying subsection 8(A), the plea
colloquy was not so ambiguous that it would cause confusion as
to which subsection of the CPPA applied. 1
1
The military judge’s review of the sample images during the
plea colloquy was thorough, to ensure that the images were,
indeed, “lascivious,” as required under subsection 8(A) of the
CPPA. Therefore, the fact that the military judge did not
discuss the “graphic” requirement under subsection 8(B) with
5
United States v. Blouin, No. 14-0656/AR
Significantly, there is no indication in the record that
Appellant or defense counsel was actually confused. Appellant
was engaged in his plea colloquy, at one point asking the
military judge to repeat the definition of “lascivious” that was
previously provided, and at another point conferring with
defense counsel before responding to the military judge’s
questions.
II. Matters Inconsistent with the Plea
The majority opinion also contends that there is a
substantial basis to question the plea because of the military
judge’s “failure to make further inquiries once he ruled that
nine of the images to which Blouin had already pleaded guilty
Appellant does not suggest that the military judge was careless
or inattentive. Rather, this omission tends to support the
conclusion that the military judge was applying subsection 8(A),
not subsection 8(B). Indeed, when reviewing the sample images,
the military judge stringently applied the relevant United
States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal 1986), aff’d sub
nom. United States v. Wiegand, 802 F.2d 1239 (9th Cir. 1987),
factors, which this Court has recognized as the appropriate test
for determining whether child pornography is “lascivious.” See
United States v. Roderick, 62 M.J. 425, 430 (C.A.A.F. 2006).
For example, when analyzing the second sample image, the
military judge asked, consistent with the Dost factors: (1)
“[i]s her genital area and pubic area in the center of the
photograph?”; (2) “Was that kind of a pose appropriate for
somebody of that age?”; (3) “Did that pose appear to you to be
sexually suggestive?”; and (4) “Do you believe that’s what the
photographer intended?” As noted, there was no line of
questioning to elicit a factual stipulation that the images
Appellant possessed were also “graphic.”
6
United States v. Blouin, No. 14-0656/AR
did not constitute child pornography,” Blouin, __ M.J. at __
(13-14). I disagree. Given the exacting detail with which the
military judge reviewed the two sample images, the failure to
articulate why the nine images from PE 4 were not child
pornography is not a substantial basis to question Appellant’s
plea.
In reaching this conclusion, I am mindful of several
factors that, considered in context, ameliorate the concerns the
majority opinion raises. First, the military judge took pains
to provide Appellant the relevant definition of child
pornography, and to review the applicable Dost factors as
applied to the two sample images taken from PE 4. The colloquy
was detailed and consistent with the provisions of the CPPA.
Second, the charges against Appellant did not specify a fixed
number of images of child pornography in Appellant’s possession
that formed the basis of these charges. Appellant was simply
charged with “knowingly possess[ing] child pornography.”
Appellant’s plea would be provident, therefore, even if only one
image met the definition of child pornography under the CPPA.
In other words, had PE 4 consisted of the three images found to
be child pornography by the military judge, Appellant’s guilty
plea would still be provident.
Third, PE 4 was a sampling of the 173 photographs found in
Appellant’s possession which were deemed “likely child
7
United States v. Blouin, No. 14-0656/AR
pornography” by the Government. The admission of the
representative images in PE 4 was surplusage. The Government
was not required to admit any exhibits or carry any burden of
proof. Appellant’s factual stipulations were the focus of the
plea colloquy. The representative images were intended to
facilitate, not replace, Appellant’s factual stipulations.
“In determining on appeal whether there is a substantial
inconsistency, this Court considers the ‘full context’ of the
plea inquiry, including Appellant’s stipulation of fact.”
United States v. Goodman, 70 M.J. 396, 399 (C.A.A.F. 2011). In
light of these circumstances, in my view, the military judge did
not abuse his discretion in failing to make further inquiries
after excluding nine photographs from PE 4. The military judge
had already reviewed the relevant definitions and their
application to two sample images, which are indisputably child
pornography. See United States v. Blouin, 73 M.J. 694, 698 (A.
Ct. Crim. App. 2014). Appellant stipulated during the plea
colloquy that he had possessed images of child pornography, the
number of which was inconsequential in the instant case. As a
factual matter, Appellant had possessed at least three images of
child pornography, which sufficiently satisfied the charges.
The military judge’s failure to explain his reasoning for
excluding the nine images is troublesome, but not fatal to the
providence of the plea.
8
United States v. Blouin, No. 14-0656/AR
As this Court stated in Roderick, courts determine “whether
a particular photograph contains a ‘lascivious exhibition’ by
combining a review of the Dost factors with an overall
consideration of the totality of the circumstances,” which is,
necessarily, a highly contextual and fact-specific inquiry.
Roderick, 62 M.J. at 430. It would have been preferable for the
military judge to review each of the nine images in detail and
explain why, in his determination, they were not child
pornography under the CPPA. But in light of the otherwise
thorough plea colloquy, Appellant’s factual stipulations, the
three images of child pornography, and the lack of itemization
in the charges against Appellant, I conclude that the accused
understood “the factual history of the crime, [and also] how the
law relates to those facts.” United States v. Medina, 66 M.J.
21, 26 (C.A.A.F. 2008). Goodman, 70 M.J. at 399, while
distinguishable, is nevertheless instructive on this point. 2
2
In Goodman, this Court evaluated whether a guilty plea was
provident when the accused made statements during the plea
inquiry that “raised the issue of mistake of fact,” which would
have been an affirmative defense to the charges. 70 M.J. at
399. Specifically, the accused was charged with sexual
harassment, and made comments during the plea inquiry suggesting
that he believed his advances were welcome, which would have
supported an affirmative “state of mind” defense. Id. This
Court reviewed “whether the failure of the military judge to
advise Appellant of the mistake of fact defense and secure his
disclaimer of the defense requires us to set aside his guilty
plea.” Id. at 397. This Court concluded that the military
9
United States v. Blouin, No. 14-0656/AR
Here, even if the military judge had further explicated why the
nine images did not satisfy the requirements of the CPPA and the
Dost factors, and the totality of the circumstances, such
clarification would not have “raise[d] . . . an inconsistency
with regard to his guilty plea.” Id. at 400. It would not have
had an impact on Appellant’s stipulations of fact, the military
judge’s recitation of the definitions from the CPPA, or the
analysis of the two sample images during the plea colloquy. The
military judge’s clarification, while beneficial, did not cause
a misunderstanding as to how the law applied to the facts.
Consequently, I would conclude that Appellant’s plea was
provident.
III. Application of Knox II
The military judge’s reliance on Knox II, 32 F.3d at 736,
during the plea colloquy did not set forth “an erroneous view of
the law,” and is therefore not a substantial basis to question
Appellant’s plea. See United States v. Inabinette, 66 M.J. 320,
322 (C.A.A.F. 2008). The majority “decline[s] to accept the
CCA’s invitation to adopt the Knox II standard as controlling
precedent in this jurisdiction,” primarily on the basis that
judge was not required to further question the accused on this
statement because the accused’s testimony, ultimately, “did not
raise a mistake of fact defense or an inconsistency with regard
to his guilty plea.” Id. at 400. Goodman is comparable to the
case at hand.
10
United States v. Blouin, No. 14-0656/AR
Knox II has been superseded by the 2003 amendments to the CPPA.
Blouin, __ M.J. at __ (9-10). Yet the majority’s reasoning for
not adopting Knox II applies only with respect to subsection
8(B) of the CPPA, which was added as a result of the 2003
amendments, and introduced the “graphic” requirement. The
majority fails to indicate why Knox II is inapplicable to
subsection 8(A), whose language pre-dated the 2003 amendments,
was not substantially altered by these amendments, only
reorganized, and has never contained a “graphic” requirement.
As the majority opinion notes, two subsections of the CPPA are
potentially applicable in the instant case: subsection 8(A),
which proscribes any “visual depiction, including photograph,
film, video, picture, or computer or computer-generated image or
picture,” the production of which “involves the use of a minor
engaging in sexually explicit conduct,” defined as a “lascivious
exhibition of the genitals or pubic area”; and subsection 8(B),
which proscribes “any visual depiction” which “is a digital
image, computer image, or computer-generated image that is, or
is indistinguishable from, that of a minor engaging in sexually
explicit conduct,” defined as a “graphic or simulated lascivious
exhibition of the genitals or pubic area.” 18 U.S.C. §
2256(2)(A), (B); 18 U.S.C. § 2256(8)(A), (B) (emphasis added).
The majority opinion suggests that the 2003 amendments to
the CPPA nullify Knox II. Yet by the majority’s own analysis,
11
United States v. Blouin, No. 14-0656/AR
the 2003 amendments did not alter the portions of the CPPA that
Knox II interpreted. Indeed, the majority opinion acknowledges
that “[s]ubsection 8(A) contains the original language of the
statute,” and subsections (B) and (C) were added “as the result
of the 2003 amendments.” Blouin, __ M.J. at __ (7-8).
The definition in the pre-2003 version of the CPPA that was
at issue in Knox II defined “sexually explicit conduct,” in the
context of child pornography, as “actual or simulated . . .
lascivious exhibition of the genitals or pubic area of any
person.” 18 U.S.C. § 2256(2)(E) (1988 & Supp. IV 1992); Knox
II, 32 F.3d at 736 (“The principal question presented by this
appeal is whether videotapes that focus on the genitalia and
pubic area of minor females constitute a ‘lascivious exhibition
of the genitals or pubic area’ under the federal child
pornography laws.”). This language is retained in subsection
(2)(A) of the CPPA even after the 2003 amendments. 18 U.S.C. §
2256(2)(A)(v) (2012) (defining “sexually explicit conduct” as
“actual or simulated lascivious exhibition of the genitals or
pubic area of any person”). 3 There is no graphic requirement
under this subsection.
3
The 2003 amendments moved the phrase “lascivious exhibition of
the genitals or pubic area” from subsection (2)(E) of 18 U.S.C.
§ 2256 to subsection 2(A)(v). Prosecutorial Remedies and Other
Tools to End the Exploitation of Children Today Act of 2003
(PROTECT Act), Pub. L. No. 108-21, 117 Stat. 650 (2003). The
term “lascivious exhibition of the genitals or pubic area” was
12
United States v. Blouin, No. 14-0656/AR
Given that the 2003 amendments did not repeal or
substantially alter the language in the CPPA that Knox II
interpreted, it is not clear to me why Knox II is no longer good
law in light of these amendments. 4
Moreover, contrary to the lead opinion’s assertion, several
federal circuits have cited Knox II favorably since the 2003
first introduced in the Child Pornography Prevention Act in 1984
when the act was first amended, and the phrase “lewd” was
replaced with “lascivious” throughout the act. Pub. L. No. 98–
292, 98 Stat 204 (1984). This amended the original phrase,
“lewd exhibition of the genitals or pubic area” to “lascivious
exhibition of the genitals or pubic area.” Compare Protection
of Children Against Sexual Exploitation Act of 1977, Pub. L. No.
95–225, 92 Stat. 7 (1978), with Pub. L. No. 98-292, 98 Stat.
204. Subsequent amendments, even those made in 2003, did not
alter or excise this phrase from the act altogether. See 18
U.S.C. § 2256(2)(A)(v).
4
For this reason, the majority opinion’s reliance on a footnote
in United States v. Williams, 444 F.3d 1286, 1299 n.63 (11th
Cir. 2006), rev’d United States v. Williams, 553 U.S. 285
(2008), to suggest that Knox II is no longer good law is,
respectfully, too thin a reed on which to hang a rejection of
the application of Knox II. Blouin, __ M.J. at __ (10). In
that footnote, the Williams court was commenting, in dicta, that
Knox II was “likely” inapplicable where a statute contains “the
requirement that lascivious exhibitions be ‘graphic’ under the
PROTECT Act’s amended obscenity definition.” 444 F.3d at 1299
n.63. The Williams court did not suggest that Knox II was no
longer good law for obscenity definitions that do not contain a
“graphic” requirement, such as subsection 8(A). Indeed, in
deciding “[w]hat exactly constitutes a forbidden ‘lascivious
exhibition of the genitals or pubic area,’” the Williams court
expressly stated that “the pictures needn’t always be ‘dirty’ or
even nude depictions to qualify.” Id. at 1299. Arguably, then,
the Williams court accepted Knox II’s continuing application to
the phrase “lascivious exhibition of the genitals or pubic
area,” appearing in subsection 8(A), while still relating in a
footnote that Knox II “likely” did not apply to subsection 8(B),
which contains a “graphic” requirement.
13
United States v. Blouin, No. 14-0656/AR
amendments, some for the proposition that child pornography
includes “lascivious” images of minors with clothed genitals or
pubic area. See United States v. Franz, 772 F.3d 134, 157 (3d
Cir. 2014) (citing Knox II favorably); United States v.
Wallenfang, 568 F.3d 649, 659 (8th Cir. 2009) (citing Knox II to
support its holding that images of children whose genitals were
covered by pantyhose still constituted child pornography under
the CPPA even though the genitals were technically clothed);
United States v. Helton, 302 F. App’x 842, 846-47 (10th Cir.
2008) (unpublished) (stating that the CPPA “does not specify the
genitals or pubic area must be fully or partially uncovered in
order to constitute an exhibition and, like our sister circuits,
we decline to read such a requirement into the statute,” in
finding that a video of a minor wearing underpants was child
pornography (citation omitted)). 5
5
The majority opinion cites two federal courts of appeals cases
that “have undermined Knox II”: United States v. Vosburgh, 602
F.3d 512, 538 (3d Cir. 2010), and United States v. Gourde, 440
F.3d 1065, 1070 (9th Cir. 2006). In my reading, they do not do
so. These cases merely state, with no elaboration or
enumeration of factors, that child pornography is distinct from
legal child erotica. The opinions do not define child
pornography or child erotica, and are therefore of limited
utility in the instant case, where these definitions are of
central importance. Recognition that child erotica is legal
does not confirm or disavow any supposed nudity requirement of
the genital or pubic area in the CPPA. For example, in
Vosburgh, the court defines “child erotica” simply as
photographs not lascivious enough to be child pornography. See
14
United States v. Blouin, No. 14-0656/AR
In my view, under a plain reading of the CPPA, there is no
threshold requirement that a visual depiction portray a minor’s
nude genitals or pubic area before courts may apply the Dost
factors. Knox II confirms this view, in finding that an image
may constitute a “lascivious exhibition of the genitals or pubic
area” based on an application of the six Dost factors and a
totality of the circumstances test. 6 Knox II, 32 F.3d at 745-46,
merely recognizes that, as in Dost, nudity of a minor’s figure
602 F.3d at 520 (describing the images of child erotica found
with images of child pornography as “suggestive” without any
further description of what these images contain). In Gourde,
the United States Court of Appeals for the Ninth Circuit
summarily states that “adult pornography and child erotica” are
“legal content,” without explaining what constitutes child
erotica. Gourde, 440 F.3d at 1070. These opinions do not
undermine Knox II’s applicability in determining whether visual
depictions are child pornography.
6
The six “Dost factors” are:
(1) whether the focal point of the visual depiction
is on the child’s genitalia or pubic area; (2)
whether the setting of the visual depiction is
sexually suggestive, i.e. in a place or pose
generally associated with sexual activity; (3)
whether the child is depicted in an unnatural pose,
or in inappropriate attire, considering the age of
the child; (4) whether the child is fully or
partially clothed, or nude; (5) whether the visual
depiction suggests sexual coyness or a willingness
to engage in sexual activity; (6) whether the
visual depiction is intended or designed to elicit
a sexual response in the viewer.
Roderick, 62 M.J. at 429.
15
United States v. Blouin, No. 14-0656/AR
is but one of six nonexhaustive factors that courts may consider
when concluding that an image is child pornography. There is no
requirement that visual depictions of minors display a child’s
nude genitals or pubic area before courts may apply the Dost
factors. I believe the inquiry into whether an image is child
pornography begins and ends with the application of the Dost
factors and the totality of the circumstances, as this Court
stated in Roderick, 62 M.J. at 430, and as I stated in my
dissent in Barberi. See United States v. Barberi, 71 M.J. 127,
135 (C.A.A.F. 2012) (Baker, C.J., dissenting) (“My approach
would take into consideration all of the Dost factors along with
the totality of the circumstances with no particular factor
being determinative.”). Given this understanding, the military
judge did not err in relying on Knox II in the plea colloquy for
the proposition that images of minors with clothed genitals and
pubic area may still constitute child pornography under the
CPPA.
Accordingly, I would hold that the military judge made no
mistake in law by relying on Knox II.
CONCLUSION
It should not be this hard to plead guilty to possessing
child pornography. The problem is found in convoluted statutes
and even more convoluted case law, which is missing the forest
for the trees. I would hold that there was no mistake of law
16
United States v. Blouin, No. 14-0656/AR
and no substantial basis in fact for questioning Appellant’s
guilty plea. I would further hold that Appellant did not
misunderstand the facts as applied to his case. As a result, I
would find Appellant’s guilty plea provident and affirm the CCA.
Part of the issue is unclear case law. Courts, including
ours, have struggled to define and distinguish among pictures of
children that are criminal and constitute child pornography,
pictures that are constitutionally protected under the First
Amendment, and pictures that are distasteful, but neither
criminal nor protected. See, e.g., Barberi, 71 M.J. 127,
overruled by United States v. Piolunek, 74 M.J. 107 (C.A.A.F.
2015).
The problem largely originated with the Supreme Court’s
invalidation of parts of the Child Pornography Prevention Act of
1996 in Ashcroft v. Free Speech Coal., 535 U.S. 234, 256 (2002).
The statute, the Court concluded, could reach too far and
encompass constitutionally protected artistic expression as well
as virtual images of children that might fall outside the
criminal law. Id. However, the Court drew an opaque line.
And, while the Supreme Court was worried about works of art and
Romeo and Juliet, id. at 246-48, lower appellate courts have
been grappling with cases seeking to distinguish between what
some judges view as supposedly lawful child erotica --
photographs depicting young children dressed as prostitutes in
17
United States v. Blouin, No. 14-0656/AR
G-strings in coy and provocative positions -- and criminal child
pornography -- photographs depicting young children dressed as
prostitutes in G-strings in coy and provocative positions that
also show some sliver of the pubic area. See Barberi, 71 M.J.
at 127. I am skeptical, if a majority of my colleagues are not,
that the Congress, the Supreme Court, or, most importantly, the
Constitution, intended such a nuanced result when it comes to
the difference between criminal and constitutionally protected
images of real children depicted in a pornographic manner for
the purpose of sexual gratification.
The legal complexity has a further dimension in the
military because under Article 134, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 934, conduct in the military that is
service discrediting or that undermines good order and
discipline might still be criminal even if the same conduct, in
the civilian context, is not criminal, and may be protected,
such as public criticism of the President while in uniform,
adultery, or verbal sexual harassment. See Parker v. Levy, 417
U.S. 733, 744-50 (1974); United States v. Forney, 67 M.J. 271,
275 (C.A.A.F. 2009); United States v. Marcum, 60 M.J. 198, 205
(C.A.A.F. 2004).
This case does not present these matters. Appellant
possessed at least one picture of child pornography that met the
definition of child pornography under subsection 8(A). He
18
United States v. Blouin, No. 14-0656/AR
admitted to doing so. The military judge found he did so. And
the CCA affirmed that he did so, as well. Therefore, I would
hold, consistent with Appellant’s factual stipulations and the
military judge’s and the CCA’s findings, that Appellant
possessed child pornography, and uphold his conviction.
19
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01-03-2023
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09-29-2016
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https://www.courtlistener.com/api/rest/v3/opinions/3123075/
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NUMBER 13-08-00562-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JOHN DAVID URBINA, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 275th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Benavides, and Vela
Memorandum Opinion by Justice Benavides
Appellant, John David Urbina, appeals from his conviction by a jury for capital
murder. See TEX . PENAL CODE ANN . § 19.03(a)(2) (Vernon Supp. 2009). Urbina raises
eleven issues on appeal. We affirm.
I. BACKGROUND 1
On April 22, 2007, Urbina lived in the 3200 block of South Closner in Edinburg,
Texas, at a known “crack house.” That evening, Miguel Aguilar was murdered during the
course of a robbery at The Gas Depot convenience store in Edinburg, where Aguilar
worked as a clerk. The following day, the “crack house” was raided by the Edinburg police,
and Urbina, among others, was taken to the police station to be interviewed. Urbina
cooperated with the investigators, tested negative for gun residue, passed a polygraph
examination, and was allowed to leave the police station. During the week-long
investigation into Aguilar’s murder, Urbina visited the police station multiple times, usually
at the request of Robert Alvarez, an investigator with the Edinburg Police Department.
On May 2, 2007, Urbina gave a written and oral statement to Detective Alvarez in
which Urbina indicated that he procured a handgun for “Gil,” who then robbed The Gas
Depot and killed Aguilar, while Urbina acted as a scout and a lookout.2 Both the written
and oral statements were admitted into evidence over Urbina’s objection and motion to
suppress. The jury charge authorized the jury to find Urbina guilty of capital murder,
murder, or aggravated robbery as either the principal actor or as a party to the offenses.
The jury returned a general verdict of guilty of capital murder, and the trial court imposed
a sentence of life imprisonment without parole. See id. § 12.31(a)(2) (Vernon Supp. 2009)
(providing a sentence of life without parole in capital murder cases when the State does
not seek the death penalty). This appeal ensued.
1
As this is a m em orandum opinion and the parties are fam iliar with the facts of the case, we will not
recite them here except as necessary to advise the parties of this Court's decision and the basic reasons for
it. See T EX . R. A PP . P. 47.4.
2
Urbina’s statem ents do not indicate whether “Gil” is Gilberto Villarreal, the person listed in the jury
charge as either the prim ary actor or a party to Aguilar’s m urder. However, neither party to this appeal asserts
that the “Gil” referred to in the statem ent is anyone other than Gilberto Villarreal.
2
II. MOTION TO SUPPRESS
In his first issue, Urbina argues that the trial court erred by denying his motion to
suppress. Urbina contends that the oral and written statement he made was involuntary
because it was induced by promises made to him by Detective Alvarez. See TEX . CODE
CRIM . PROC . ANN . art. 38.21 (Vernon 2005); Martinez v. State, 127 S.W.3d 792, 794 (Tex.
Crim. App. 2004). We disagree.
“Generally, a trial court's ruling on a motion to suppress is reviewed by an abuse of
discretion standard.” Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999). We use
a bifurcated standard, giving “‘almost total deference to a trial court's determination of the
historical facts that the record supports especially when the trial court's fact findings are
based on an evaluation of credibility and demeanor.’” Amador v. State, 221 S.W.3d 666,
673 (Tex. Crim. App. 2007) (quoting Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.
1997)). We “afford the same level of deference to a trial court's ruling on ‘application of
law to fact questions,’ or ‘mixed questions of law and fact,’ if the resolution of those
questions turns on an evaluation of credibility and demeanor.” Id. (quoting Montanez v.
State, 195 S.W.3d 101, 109 (Tex. Crim. App. 2006). We “review de novo ‘mixed questions
of law and fact’ that do not depend upon credibility and demeanor.” Id. (quoting Montanez,
195 S.W.3d at 109).
“At a hearing on a motion to suppress, the trial court is the sole and exclusive trier
of fact and judge of the credibility of witnesses as well as the weight to be given their
testimony.” Garza v. State, 213 S.W.3d 338, 346 (Tex. Crim. App. 2007). As such, “the
trial judge may choose to believe or disbelieve any or all of a witness's testimony.” Id.
“A statement of an accused may be used in evidence against him if it appears that
the same was freely and voluntarily made without compulsion or persuasion . . . .” TEX .
3
CODE CRIM . PROC . ANN . art. 38.21. “[F]or a promise to render a confession invalid under
[a]rticle 38.21, the promise must be positive, made or sanctioned by someone in authority,
and of such an influential nature that it would cause a defendant to speak untruthfully.”
Martinez, 127 S.W.3d at 794.
At the hearing on his motion to suppress, Urbina asserted that Detective Alvarez
had used him as a confidential informant to help Detective Alvarez apprehend drug dealers
through the use of “controlled buys.” Urbina stated that Detective Alvarez used him in this
manner six or seven times, that Detective Alvarez would give him the money to make a
drug purchase, that he would make the purchase, that Detective Alvarez would arrest the
dealer, and that Detective Alvarez would let him keep the drugs, which he would then
consume. Urbina further testified that Detective Alvarez had also “made” some charges
against Urbina “disappear.”
Vanessa Baldazo, Urbina’s fiancé, testified at the motion to suppress hearing that
Detective Alvarez gave Urbina money on several occasions so that Urbina could buy gas,
groceries, cigarettes, food, and soda. Baldazo saw Detective Alvarez take the money out
of his own wallet and give it to Urbina. Baldazo also stated that she had asked Detective
Alvarez to give her money to help her pay her bills and that Detective Alvarez promised to
get her $250, although he never gave her any money.
Urbina and Baldazo both testified that during investigation into the murder, Detective
Alvarez continually affirmed that Urbina was not going to be in any trouble and that
everything was “okay.” Urbina stated that, prior to recording his statement, he and
Detective Alvarez drafted the statement in such a way that the statement could “be
presented proper [sic] in court.” Urbina asserted that Detective Alvarez needed the
4
statement of someone at the scene so that the actual murderer could be prosecuted and
that Detective Alvarez promised him he would not go to jail but that Detective Alvarez
would help him get into a drug rehabilitation program.
Detective Alvarez testified at the suppression hearing that he was not in the division
of the police department that handled “controlled buys” and he could not have and did not
use Urbina to handle such transactions. Detective Alvarez denied using Urbina as a
confidential informant, but he recalled one instance where he paid Urbina $60 to contact
him when a suspect in a different case came to Urbina’s house. Regarding drug
rehabilitation, Detective Alvarez noted that he instructed Urbina that Urbina could
voluntarily enter a rehabilitation program, but that Detective Alvarez could not get him into
one. Detective Alvarez asserted that he did not make any promises to Urbina in order to
induce him to give the statements, that he did not tell Urbina what to say in the statements,
and that Urbina gave the statements freely and voluntarily. Further, Urbina initialed the
warning paragraph at the beginning of the written statement, which declared, in relevant
part, that he understood his rights and that he “knowingly and voluntarily waive[d] such
rights and freely and voluntarily [made] the . . . statement without compulsion or
persuasion.”
By denying Urbina’s motion to suppress, the trial court impliedly chose to believe
Detective Alvarez and to disbelieve Urbina and Baldazo. See Garza, 213 S.W.3d at 346.
As the trier of fact at the suppression hearing, the trial court was the sole judge of the
credibility of the witnesses and the weight to be given to their testimony. See id. The trial
court found that no one promised Urbina anything in exchange for making the statements
and that he made them voluntarily. We conclude that the trial court’s decision to deny the
5
motion to suppress is within the zone of reasonable disagreement. See State v. Dixon,
206 S.W.3d 587, 590 (Tex. Crim. App. 2006). Urbina’s first issue is overruled.
III. SUFFICIENCY OF THE EVIDENCE
By issues two, three, four, and five, Urbina contends that: (1) the evidence is legally
and factually insufficient to support the verdict (issues two and three); (2) the trial court
erred by denying his motion for directed verdict (issue four); and (3) the trial court erred by
instructing the jury on the law of parties because the evidence did not support such an
instruction (issue five).3
A. Standard of Review and Applicable Law
When reviewing the legal sufficiency of the evidence, we must determine whether
“‘any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt’—not whether ‘[we believe] that the evidence at the trial established guilt
beyond a reasonable doubt.’” Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App.
2009) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). “[W]e assess all of the
evidence “‘in the light most favorable to the prosecution.’” Id. (quoting Jackson, 443 U.S.
at 319.) “After giving proper deference to the factfinder's role, we will uphold the verdict
unless a rational factfinder must have had reasonable doubt as to any essential element.”
3
In their briefs to this Court, both parties com bined these issues for discussion purposes. Because
the standard of review for Urbina’s legal sufficiency, directed verdict, and charge error issues is the sam e, we
will also com bine these issues for purposes of discussion. See Perales v. State, 117 S.W .3d 434, 443 (Tex.
App.–Corpus Christi 2003, pet. ref’d) (“A challenge to the denial of a m otion for directed verdict is a challenge
to the legal sufficiency of the evidence.”) (citing W illiam s v. State, 937 S.W .2d 479, 482 (Tex. Crim . App.
1996)); Mullins v. State, 173 S.W .3d 167, 178 (Tex. App.–Fort W orth 2005, no pet.) (holding that because the
evidence was legally and factually sufficient to support the appellant’s conviction as a party, the trial court did
not err by instructing the jury on the law of parties) (citing Ladd v. State, 3 S.W .3d 547, 564 (Tex. Crim . App.
1999)).
6
Id. at 518 (citing Narvaiz v. State, 840 S.W.2d 415, 423 (Tex. Crim. App. 1992)).
“Evidence that is legally sufficient, however, can be deemed factually insufficient in
two ways: (1) the evidence supporting the conviction is ‘too weak’ to support the
factfinder's verdict, or (2) considering conflicting evidence, the factfinder's verdict is ‘against
the great weight and preponderance of the evidence.’” Id. (quoting Watson v. State, 204
S.W.3d 404, 414 (Tex. Crim. App. 2006)). In conducting a factual sufficiency review, we
defer to the jury’s findings. Id. We consider all of the evidence in a neutral light and will
“find the evidence factually insufficient when necessary to ‘prevent manifest injustice.’” Id.
(quoting Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997)).
“A challenge to the denial of a motion for directed verdict is a challenge to the legal
sufficiency of the evidence.” Perales v. State, 117 S.W.3d 434, 443 (Tex. App.–Corpus
Christi 2003, pet. ref’d) (citing Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App.
1996)). “In general, an instruction on the law of parties may be given to the jury whenever
there is sufficient evidence to support a jury verdict that the defendant is criminally
responsible under the law of parties.” Ladd v. State, 3 S.W.3d 547, 564 (Tex. Crim. App.
1999).
We measure the legal and factual sufficiency of the evidence based on a
hypothetically correct jury charge. Grotti v. State, 273 S.W.3d 273, 280-81 (Tex. Crim.
App. 2008). A hypothetically correct jury charge “accurately promulgates the law, is
authorized by the indictment, does not unnecessarily increase the state's burden of proof
or restrict the state's theories of liability, and adequately describes the particular offense
for which the defendant was tried.” Id. In a hypothetically correct jury charge, the elements
of capital murder under section 19.03(a)(2) of the penal code are: (1) the person; (2)
7
during the course of committing or attempting to commit a robbery; (3) intentionally; (4)
causes the death; (5) of an individual. See TEX . PENAL CODE ANN . § 19.03(a)(2); see also
id. § 19.02(b)(1) (Vernon 2003) (listing the elements of murder). A person commits
aggravated robbery if he commits robbery and either “causes serious bodily injury to
another” or “uses or exhibits a deadly weapon.” Id. § 29.03(a)(1), (2) (Vernon 2003). “A
person commits [robbery] if, in the course of committing theft . . . and with intent to obtain
or maintain control of the property, he . . . intentionally, knowingly, or recklessly causes
bodily injury to another.” Id. 29.02(a)(1) (Vernon 2003). “A person is criminally responsible
for an offense committed by the conduct of another if . . . acting with intent to promote or
assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to
aid the other person to commit the offense . . . .” Id. § 7.02(a)(2) (Vernon 2003). When
we review the sufficiency of the evidence supporting a defendant’s participation as a party,
“we may consider ‘events occurring before, during and after the commission of the offense,
and may rely on actions of the defendant which show an understanding and common
design to do the prohibited act.’” King v. State, 29 S.W.3d 556, 564 (Tex. Crim. App. 2000)
(quoting Ranson v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994)). Additionally,
“[c]ircumstantial evidence is as probative as direct evidence in establishing the guilt of an
actor, and circumstantial evidence alone can be sufficient to establish guilt.” Clayton v.
State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
B. Discussion
Urbina argues that because there is no physical evidence linking him to either the
robbery of The Gas Depot or to Aguilar’s murder, the evidence is insufficient to support the
jury’s verdict and the trial court’s instruction on the law of parties and that he was entitled
8
to a directed verdict.4 The State contends that Urbina’s statement is sufficient evidence
to sustain Urbina’s conviction as a party to the offenses committed by Villarreal. We agree
with the State.
In his statement, Urbina stated that on the evening of April 22, 2007, Villarreal
arrived at the house where Urbina was “getting high.” Villarreal and Urbina “smoked some
crack,” and Villarreal wanted “some more” but did not have any money. Urbina did not
have any money either, but he “had access to a pistol that [Villarreal] could use.” Villarreal
left, and while Villarreal was gone, Urbina went to Tom Drewry’s house and took a gun
without Drewry’s knowledge. When Villarreal returned, Urbina gave him the gun, and
Villarreal left to “scope it out.” Villarreal returned between 9:00 and 9:15 p.m., and
informed Urbina that the only place he could “hit where they don’t know him” was The Gas
Depot. Pursuant to Villarreal’s instructions, Urbina rode his bike over to The Gas Depot
to determine whether anyone was there. Urbina returned and informed Villarreal that no
one was at The Gas Depot. Villarreal told Urbina to return to the store and, when Villarreal
drove by, to “give [Villarreal] a signal that the coast was clear and that no one was at the
store.” Urbina went back to the store and saw that only Aguilar was there. He signaled to
Villarreal, who robbed the store and killed Aguilar. When Urbina saw Villarreal shoot
Aguilar, he ran to some friends’ motel room and took a shower. Later that night, Urbina
returned to Drewry’s house and made sure that Drewry stayed high so that he would not
4
The State argues that Urbina failed to adequately brief his argum ent concerning the jury instruction
on the law of parties because he failed to cite any authorities to support his contention. See T EX . R. A PP . P.
38.2. However, U rbina recited the applicable standard of review for this issue and incorporated his legal
sufficiency argum ent. Following these recitations, Urbina presented his argum ents on this issue. The State
followed the sam e pattern in its brief. W e conclude that Urbina properly briefed this issue.
9
suspect that his gun was missing. Villarreal returned the gun, and Urbina put the gun
underneath Drewry’s bed. Urbina went home, got high, and, when the cops arrived, he ran
out the back door.
Urbina directs us to the testimony of the trial witnesses and asserts that none of
these witnesses presented any physical evidence linking Urbina to the robbery and
murder.5 While we agree that there was no DNA or fingerprint evidence linking Urbina to
the crimes, physical evidence is not necessary for a conviction in this case. See Clayton,
235 S.W.3d at 778. Urbina’s statement demonstrates that he intended to promote or
assist Villarreal in the robbery by procuring the gun and by acting as a scout and a lookout.
See TEX . PENAL CODE ANN . § 7.02(a)(2); Cumpian v. State, 812 S.W.2d 88, 90 (Tex.
App.–San Antonio 1991, no pet.) (holding evidence sufficient to sustain burglary conviction
when witness identified defendant as a lookout). Urbina also indicated that Villarreal
murdered Aguilar and that he fled the scene once he saw Villarreal shoot Aguilar. See
Clayton, 235 S.W.3d at 780) (“[A] factfinder may draw an inference of guilt from the
circumstance of flight.”). Later, Urbina kept Drewry high while he hid the gun under
Drewry’s bed. See Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2007) (stating
that attempts to conceal incriminating evidence are circumstances of guilt). Nina Marie
Lopez testified that on the night of the murder, while she was at Urbina’s house, Urbina left
5
Specifically, Urbina directs us to the testim ony of the following witnesses: Anastacia Aguilar,
Aguilar’s m other; Elijio Vela, a granite shop owner; Jam es Ram irez, a patrol officer with the Edinburg Police
Departm ent; Jose Francisco Garza, an investigator with the Edinburg Police Departm ent; David Valdez, an
investigator with the Edinburg Police Departm ent; Norm a Jean Farley, the chief forensic pathologist for
Hidalgo County; Caleigh Rose Garcia, a college student who went into The Gas Depot following the m urder
but who did not see Aguilar’s body; Richard Drewry, a fire m arshal with the City of Edinburg who gave his
brother, Tom Drewry, the gun used in Aguilar’s m urder; Rosie Rodriguez, the owner of The Gas Depot; Nina
Marie Lopez, a person who used cocaine at the “crack house” with Urbina; Margaret Gonzalez, a custom er
of The Gas Depot who m ade a purchase from Aguilar shortly before he was m urdered; and Detective Alvarez.
10
and returned with approximately $100 of cocaine. She noted that Urbina was “jumpy” and
that Urbina told her that the police were after him and that he had been hiding “underneath
where the canal was.”
Reviewing the evidence in the light most favorable to the prosecution, we conclude
that a rational juror could have found beyond a reasonable doubt that Urbina was guilty as
a party to capital murder. See Laster, 275 S.W.3d at 517; see also TEX . PENAL CODE ANN .
§§ 7.02(a)(2), 19.03(a)(2), 29.02(a)(2). Reviewing the evidence in a neutral light, we
conclude that the evidence is not too weak to support the jury’s verdict nor is the verdict
against the great weight and preponderance of the evidence. See Laster, 275 S.W.3d at
518. Additionally, we conclude that the evidence is sufficient to support the jury’s verdict
that Urbina is criminally responsible under the law of parties and that the trial court did not
err by including in the jury charge an instruction on the law of parties. See Ladd, 3 S.W.3d
at 564; Mullins v. State, 173 S.W.3d 167 (Tex. App.–Fort Worth 2005, no pet.) (holding that
when the evidence is sufficient to support the defendant’s conviction as a party, the trial
court does not err by including a law of parties instruction in the jury charge); see also TEX .
PENAL CODE ANN . § 7.02(a)(2). Urbina’s second, third, fourth, and fifth issues are
overruled.
IV. LESSER -INCLUDED OFFENSES
In his sixth and seventh issues, Urbina argues that the trial court erred by denying
his requests to include in the jury charge instructions on the lesser-included offenses of
manslaughter and criminally negligent homicide. See TEX . PENAL CODE ANN . § 19.04
(Vernon 2003) (Manslaughter); § 19.05 (Vernon 2003) (Criminally Negligent Homicide)
11
Urbina contends that because the charge contained the lesser-included offenses of murder
and aggravated robbery, “some evidence of the charged offense of capital [murder] was
absent.” See id. § 19.02 (Murder); § 29.03 (Vernon 2003) (Aggravated Robbery). Urbina
“suggests that the missing elements must involve the culpable mental state . . .” and that
because murder and aggravated robbery involve different mental states than capital
murder, the trial court erred by refusing to give instructions on manslaughter and criminally
negligent homicide. The State asserts that the trial court did not err in denying Urbina’s
requests because “there was no evidence supporting a conclusion that [Urbina] . . . acted
recklessly or with criminal negligence, as opposed to intentionally.” We agree with the
State.
A trial court includes a charge on a lesser-included offense when (1) “the lesser
included offense [is] included within the proof necessary to establish the offense charged”;
and (2) “some evidence [ ] exist[s] in the record that would permit a jury rationally to find
that if appellant is guilty, he is guilty only of the lesser offense.” Smith v. State, 187 S.W.3d
186, 195 (Tex. App.–Fort Worth 2006, pet. ref’d) (citing Salinas v. State, 163 S.W.3d 734,
741 (Tex. Crim. App. 2005); Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App.
1993); Royster v. State, 622 S.W2d 442, 446 (Tex. Crim. App. 1981)). The State does not
contest that manslaughter and criminally negligent homicide are lesser-included offenses
of capital murder; therefore, Urbina has satisfied the first prong. See Cardenas v. State,
30 S.W.3d 384, 392 (Tex. Crim. App. 2000) (noting that manslaughter and criminally
negligent homicide are lesser-included offenses of capital murder). We must determine
whether there is some evidence in the record that would permit the jury to find that if Urbina
12
is guilty, he is guilty only of manslaughter or criminally negligent homicide. Smith, 187
S.W.3d at 195.
Here, the jury was charged that it could find Urbina guilty of capital murder either as
the primary actor or as a party to Aguilar’s murder. See TEX . PENAL CODE ANN . §§
7.02(a)(2), 19.03(a)(2). Urbina challenges the trial court’s denial of his requested
instructions on the grounds that: (1) the evidence shows that he was aware of and
disregarded the substantial risk that Villarreal would commit capital murder, therefore, he
is only guilty of manslaughter; or (2) the evidence shows that he should have been aware
substantial and unjustifiable risk that Villarreal would commit capital murder, therefore, he
is guilty only of criminally negligent homicide. See id. § 19.04 (Manslaughter), § 19.05
(Criminally Negligent Homicide); see also id. § 6.03(c), (d) (Vernon 2003) (defining the
culpable mental states of recklessness and criminal negligence).
Urbina’s argument fails to recognize that a defendant can be guilty as a party only
when he acts intentionally. See id. § 7.02(a)(2) (“A person is criminally responsible for an
offense committed by the conduct of another if . . . acting with intent to promote or assist
the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the
other person to commit the offense . . . .”) (emphasis added); Barnes v. State, 56 S.W.3d
221, 236 (Tex. App.–Fort Worth 2001, pet. ref’d) (citing Lawton v. State, 913 S.W.2d 542,
554 (Tex. Crim. App. 1995)). “When a party is not the ‘primary actor,’ the State must prove
conduct constituting an offense plus an act by the defendant done with the intent to
promote or assist such conduct.” Christensen v. State, 240 S.W.3d 25, 31 (Tex.
App.–Houston [1st Dist.] 2007, pet. ref’d) (op. on reh’g) (citing Beier v. State, 687 S.W.2d
13
2, 3 (Tex. Crim. App. 1985) and Miller v. State, 83 S.W.3d 308, 313 (Tex. App.–Austin
2002, pet. ref'd)). The jury charge followed section 7.02(a)(2) by requiring that, to find
Urbina guilty as a party, the jury must find beyond a reasonable doubt that Urbina intended
to promote or assist Villarreal. We conclude that the trial court did not err by denying
Urbina’s requested lesser-included offense instructions. Urbina’s sixth and seventh issues
are overruled.
V. VIOLATION OF THE RULE
In his eighth, ninth, tenth, and eleventh issues, Urbina argues that the trial court
erred by failing to strike or disallow certain testimony due to violations of the Rule and by
denying his motion for mistrial based on these same violations. See TEX . R. EVID . 614
(allowing the exclusion of certain witnesses upon a motion from either party or the court’s
own motion; commonly referred to as “the Rule”); see also TEX . CODE CRIM . PROC . ANN . art.
36.03 (Vernon 2007) (providing for the exclusion of certain witnesses “who for the
purposes of the prosecution is a victim, close relative of a deceased victim, or guardian of
a victim . . . .”); Russell v. State, 155 S.W.3d 176, 179 (Tex. Crim. App. 2005) (“The
procedure of excluding witnesses from the courtroom is commonly called putting the
witnesses ‘under the rule.’ The purpose of placing witnesses under the rule is to prevent
the testimony of one witness from influencing the testimony of another, consciously or
not.”).
We use an abuse of discretion standard to review both a trial court’s decision to
allow testimony from a witness who has violated the Rule and a trial court’s denial of a
motion for mistrial. See Minor v. State, 91 S.W.3d 824, 829 (Tex. App.–Fort Worth 2002,
14
pet. ref’d) (citing Guerra v. State, 771 S.W.2d 453, 474-75 (Tex. Crim. App. 1988)); Wead
v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004). To determine whether a trial court
abused its discretion in allowing a violation of the Rule, thereby harming the defendant, we
utilize a two-step analysis. Minor, 91 S.W.3d at 829; Potter v. State, 74 S.W.3d 105, 110
(Tex. App.–Waco 2002, no pet.) (“In reviewing the trial court's decision to allow the
testimony, we look at whether the defendant was harmed by the witness's violation; that
is, whether the witness's presence during other testimony resulted in injury to the
defendant.”) (citing Bell v. State, 938 S.W.2d 35, 50 (Tex. Crim. App. 1996)).
First, we ascertain whether the witness is one who has “been sworn or listed as
witness[ ] in the case and either [heard] testimony or [discussed] another’s testimony” or
is a person who was “not intended to be [a witness] and [is] not connected with the case-in-
chief but who [has], due to events during trial, become [a] necessary [witness].” Minor, 91
S.W.3d at 829 (citing Guerra, 771 S.W.2d at 476). Second,
we must determine: (1) whether the witness actually conferred with or heard
the testimony of another witness without court permission; and (2) whether
“the witness’s testimony contradict[ed] the testmony of a witness he actually
heard from the opposing side or corroborate[d] the testimony of another
witness he actually heard from the same side on an issue of fact bearing
upon the issue of guilt or innocence.”
Id. (quoting Loven v. State, 831 S.W.2d 387, 399 (Tex. App.–Amarillo 1992, no pet.)).
When both criteria are met, the trial court has abused its discretion. Id.
During the guilt/innocence phase of his trial, Urbina alleged that Rosie Rodriguez,
the owner of The Gas Depot and a State’s witness, had been speaking with witnesses
involved in the case. See TEX . CODE CRIM . PROC . ANN . art. 36.03 (providing for the
exclusion of the victim of the crime); see also id. art. 36.06 (Vernon 2007) (prohibiting
15
witnesses excluded under art. 36.03 from “convers[ing] with each other or with any other
person about the case” and from “read[ing] any report of or comment upon the testimony
in the case while under rule”). Rodriguez had been placed under the Rule, but after her
testimony in the trial, she was overheard outside of the courtroom asking several other
listed witnesses about the case. The trial court held a hearing on the alleged violation of
the Rule during which Rodriguez testified. She stated that she had spoken with Margaret
Gonzalez, Detective Alvarez, and an unidentified “lady in red” who was not a witness in the
case. Rodriguez claimed to have only asked who was testifying and who had testified and
that no one would answer her questions. She did not ask about “actual testimony”; she did
not tell anyone about her own testimony; and no one answered her questions.
Under the first prong of the analysis, Rodriguez, Gonzalez and Detective Alvarez
were witnesses who had “been sworn or listed as witnesses in the case and either [heard]
testimony or [discussed] another’s testimony . . . .”6 See Minor, 91 S.W.3d at 829.
Therefore, we must determine whether they “actually conferred with or heard the testimony
of another witness without court permission.” Id. There is no evidence that Rodriguez,
Gonzalez, and Investigator Alvarez heard the testimony of other witnesses, and Rodriguez
specifically stated that she did not discuss her own testimony with Gonzalez or Investigator
Alvarez. Assuming, without deciding, that Rodriguez “conferred with” Gonzalez and
Detective Alvarez, we conclude that neither Gonzalez’s nor Detective Alvarez’s testimony
corroborated or contradicted the testimony of witnesses they “actually heard.” Id.
6
The “lady in red” was never identified as a witness and did not testify at trial. Thus, the first prong
of the analysis is not satisfied, and the trial court did not abuse its discretion on this ground. See Minor, 91
S.W .3d at 829.
16
Urbina does not direct us to any corroborating or contradicting testimony pertaining
to this issue in the record. See TEX . R. APP. P. 38.1(i). There is no evidence that Gonzalez
and Detective Alvarez “actually heard” the testimony of any other witness, including
Rodriguez. Gonzalez testified that Aguilar was the store clerk at The Gas Depot who
helped her with some purchases shortly before he was killed. Her testimony did not
corroborate or contradict the testimony of any other witness. Detective Alvarez, in pertinent
part, testified that he did not pay any of Urbina’s bills. This testimony did contradict Elvira
Peza, Urbina’s sister, who testified that Urbina told her that Investigator Alvarez had
promised to help Urbina pay his bills. There is no evidence that Investigator Alvarez
“actually heard” Peza’s testimony or that Rodriguez “conferred with” him regarding Peza’s
testimony. See Minor, 91 S.W.3d at 829. Therefore, we conclude that the trial court did
not abuse its discretion by not striking Rodriguez’s testimony, by allowing Investigator
Alvarez and Gonzalez to testify, and by denying Urbina’s motion for mistrial. Urbina’s
eighth, ninth, tenth, and eleventh issues are overruled.
VI. CONCLUSION
Having overruled all of Urbina’s issues, we affirm the judgment of the trial court.
__________________________
GINA M. BENAVIDES,
Justice
Do not publish.
TEX . R. APP. P. 47.2(b).
Delivered and filed the
19th day of August, 2010.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4640
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID KAREEM TURPIN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. James C. Dever III, District Judge. (5:17-cr-00157-D-1)
Submitted: March 30, 2020 Decided: April 7, 2020
Before WILKINSON, KEENAN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
G. Alan DuBois, Federal Public Defender, Jaclyn L. DiLauro, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina,
for Appellant. Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker,
Assistant United States Attorney, Aakash Singh, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Kareem Turpin appeals his convictions and 240-month sentence imposed
following his guilty plea to Hobbs Act robbery, in violation of 18 U.S.C. § 1951 (2018),
and brandishing a firearm in furtherance of a crime of violence and aiding and abetting, in
violation of 18 U.S.C. §§ 924(c)(1)(A)(ii), 2 (2018). For the reasons set forth below, we
affirm.
On appeal, Turpin first argues that his 240-month sentence was substantively
unreasonable. We review the sentence imposed by the district court, “whether inside, just
outside, or significantly outside the Guidelines range,” for reasonableness “under a
deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007).
This standard encompasses review for both procedural and substantive reasonableness.
United States v. Howard, 773 F.3d 519, 528 (4th Cir. 2014). We first examine the sentence
for “significant procedural error,” such as improperly calculating the Guidelines range,
insufficiently considering the 18 U.S.C. § 3553(a) (2018) factors, or inadequately
explaining the sentence imposed. Gall, 552 U.S. at 51. If a sentence is free of “significant
procedural error,” then we review it for substantive reasonableness, “tak[ing] into account
the totality of the circumstances.” Id.
To be substantively reasonable, the sentence must be “sufficient, but not greater
than necessary,” to satisfy the statutory purposes of sentencing. 18 U.S.C. § 3553(a). In
assessing the substantive reasonableness of an upward departure, we must “consider
whether the sentencing court acted reasonably both with respect to its decision to impose
such a sentence and with respect to the extent of the divergence from the sentencing range.”
2
United States v. Washington, 743 F.3d 938, 944 (4th Cir. 2014) (internal quotation marks
omitted). “The farther the court diverges from the advisory guideline range, the more
compelling the reasons for the divergence must be.” United States v. Tucker, 473 F.3d
556, 561 (4th Cir. 2007) (internal quotation marks omitted). We, however, must “give due
deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the
extent of the [departure].” United States v. Zuk, 874 F.3d 398, 409 (4th Cir. 2017) (internal
quotation marks omitted). “[E]ven though we might reasonably conclude that a different
sentence is appropriate, that conclusion, standing alone, is an insufficient basis to vacate
the district court’s chosen sentence.” Id. (alterations and internal quotation marks omitted).
Although Turpin does not challenge the procedural reasonableness of his sentence,
we have reviewed that aspect of his sentence and conclude that the sentence is procedurally
sound. See United States v. Provance, 944 F.3d 213, 218 (4th Cir. 2019) (holding that
appellate court must review sentence for procedural reasonableness before considering its
substantive reasonableness). Additionally, we conclude that Turpin’s 240-month sentence
is substantively reasonable. The district court provided a detailed explanation for the
sentence it imposed that was both rooted in the relevant § 3553(a) factors and responsive
to Turpin’s arguments for a lower sentence. The court emphasized Turpin’s lengthy
criminal history, the nature and circumstances of the offense, the need for the sentence to
provide adequate deterrence and to protect the public, and the need to provide just
punishment for the offense.
Although Turpin argues on appeal that the district court “failed to take adequate
account of . . . his life expectancy and the decline in recidivism with increasing age, both
3
of which undermine the court’s stated rationale of incapacitation and deterrence,” we
conclude that this claim is belied by the record. The court acknowledged Turpin’s
arguments in mitigation, including Turpin’s arguments regarding his age and “issues
associated with recidivism statistics and life expectancies” but found these arguments
outweighed by his “deeply troubling” criminal history. To the extent that Turpin claims
that the district court should have given greater mitigating effect to the factors he raised at
sentencing, we decline to substitute our § 3553(a) calculus for that of the district court. See
Gall, 552 U.S. at 51-52 (recognizing that “[t]he sentencing judge is in a superior position
to find facts and judge their import under § 3553(a) in the individual case,” given
sentencing judge’s “institutional advantage” and increased familiarity with individual
defendant and case record (internal quotation marks omitted)); see also United States v.
Jeffery, 631 F.3d 669, 679 (4th Cir. 2011) (observing that sentencing courts “have
extremely broad discretion when determining the weight to be given each of the § 3553(a)
factors”).
Finally, Turpin argues that Hobbs Act robbery is not a crime of violence under 18
U.S.C. § 924(c)(3) (2018), and thus cannot serve as a predicate offense for his 18 U.S.C.
§ 924(c)(1)(A) conviction. As acknowledged by Turpin, this claim is squarely foreclosed
by our decision in United States v. Mathis, 932 F.3d 242, 266 (4th Cir.), cert. denied, 140
S. Ct. 639 (2019), and cert. denied, 140 S. Ct. 640 (2019).
4
We therefore affirm the criminal judgment. We dispense with oral argument
because the facts and legal contentions are adequately presented in the materials before this
court and argument would not aid the decisional process.
AFFIRMED
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4549
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CORTESE TRAMAND DAVIS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. Terrence W. Boyle, Chief District Judge. (5:15-cr-00136-BO-1)
Submitted: March 26, 2020 Decided: April 7, 2020
Before GREGORY, Chief Judge, NIEMEYER, Circuit Judge, and TRAXLER, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Marilyn G. Ozer, MASSENGALE & OZER, Chapel Hill, North Carolina, for Appellant.
Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker, Assistant United
States Attorney, Banumathi Rangarajan, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cortese Tramand Davis pled guilty to two counts of Hobbs Act robbery, in violation
of 18 U.S.C. § 1951 (2018), and two counts of brandishing a firearm in furtherance of a
crime of violence, in violation of 18 U.S.C. § 924(c) (2018). On appeal, Davis argues that
Hobbs Act robbery does not qualify as a crime of violence under § 924(c). Finding no
error, we affirm.
“We review de novo the question whether an offense qualifies as a crime of
violence.” United States v. Mathis, 932 F.3d 242, 263 (4th Cir.), cert. denied, 140 S. Ct.
639 (2019), and cert. denied, 140 S. Ct. 640 (2019). A crime of violence for § 924(c)
purposes is defined as:
an offense that is a felony and (A) has as an element the use, attempted use,
or threatened use of physical force against the person or property of another
[(the “force clause”)], or (B) that[,] by its nature, involves a substantial risk
that physical force against the person or property of another may be used in
the course of committing the offense [(the “residual clause”)].
18 U.S.C. § 924(c)(3).
We previously declared that the residual clause is unconstitutionally vague. United
States v. Simms, 914 F.3d 229, 237 (4th Cir.) (en banc), cert. denied, 140 S. Ct. 304 (2019);
accord United States v. Davis, 139 S. Ct. 2319, 2336 (2019). However, we have held that
Hobbs Act robbery qualifies as a crime of violence under the force clause. Mathis, 932
2
F.3d at 266. Accordingly, the district court did not err in rejecting Davis’ arguments to the
contrary. *
Thus, we affirm the district court’s judgment. We dispense with oral argument
because the facts and legal contentions are adequately presented in the materials before this
court and argument would not aid the decisional process.
AFFIRMED
*
Davis also filed a motion for leave to file a supplemental brief to raise a claim
under § 403 of the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194. We denied
his motion and instead held this case in abeyance for United States v. Jordan, F.3d , ,
No. 17-4751, 2020 WL 1022420, at *8-10 (4th Cir. Mar. 3, 2020), in which we held that
the First Step Act does not apply to cases that were pending on appeal when Congress
passed the First Step Act.
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 3 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4199
(D.C. No. 00-CR-332-B)
JESUS SALLAS-MORENO, (D. Utah)
also known as Jesus Arriola-Garcia,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TACHA , Chief Judge, PORFILIO , and ANDERSON , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Defendant appeals his sentence following a plea of guilty to one count of
illegal entry following deportation, in violation of 8 U.S.C. § 1326(a). We have
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.
Defendant was sentenced to seventy months’ imprisonment, which included
a sixteen-level enhancement (from a base level of eight) based on his prior
conviction of an aggravated felony. See 8 U.S.C. § 1326(b)(2); USSG
§ 2L1.2(b)(1)(A). Although he submitted objections to the presentence report, he
did not object to the sixteen-level enhancement for having previously sustained an
aggravated felony. Appellant’s Br. at 3. At the sentencing hearing the district
court granted a downward departure from Category VI to Category V. Id.
On appeal, defendant argues that his sentence must be vacated because
§ 1326(b), the statute for the crime of conviction, carries a maximum sentence
of two years’ imprisonment. The basis for his argument is the Supreme Court’s
decision in Apprendi v. New Jersey , 530 U.S. 466, 490 (2000), in which the Court
held that facts used to enhance the penalty for a crime beyond the statutory
maximum must be submitted to a jury and proved beyond a reasonable doubt.
Specifically, he argues that because he was neither charged with, nor pleaded
guilty to, the prior felony conviction, the sentencing court erred in relying on the
prior conviction to enhance his sentence under 28 U.S.C. § 1326(b)(2).
-2-
2
Defendant acknowledges, as he must, that the Supreme Court has also held
that an indictment need not allege a prior felony conviction in order for a district
court to enhance a sentence because § 1326(b)(2) creates a sentencing factor,
not a separate element of the offense. See Almendarez-Torres v. United States ,
523 U.S. 224, 235 (1998). Moreover, this court has squarely held that the
Apprendi Court did not overrule Almendarez-Torres , but rather carved out an
exception by stating that “‘ [o]ther than the fact of a prior conviction , any fact
that increases the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable doubt.’” United
States v. Martinez-Villalva , 232 F.3d 1329, 1331 (10th Cir. 2000) (quoting
Apprendi , 530 U.S. at 490) (emphasis added). Like Martinez-Villalva ,
defendant’s sentence “falls squarely within the exception to the Apprendi holding
and is governed by Almendarez-Torres .” Id.
Defendant concedes that relief is foreclosed by Almendarez-Torres and this
court’s decision in Martinez-Villalva , see Appellant’s Br. at 11-12, but seeks to
preserve his argument for review by the Supreme Court in anticipation
Almendarez-Torres will be overruled. He has done so. “Nevertheless,
Almendarez-Torres has not been overruled and directly controls our decision
-3-
in this case.” United States v. Dorris , 236 F.3d 582, 587 (10th Cir. 2000),
cert. denied , 121 S. Ct. 1635 (2001).
AFFIRMED.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-1249
SEON D. DEABREU,
Plaintiff - Appellant,
v.
UNITED PARCEL SERVICE, INC.,
Defendant - Appellee.
Appeal from the United States District Court for the District of Maryland, at Greenbelt.
Theodore D. Chuang, District Judge. (8:18-cv-01143-TDC)
Submitted: March 24, 2020 Decided: April 7, 2020
Before WILKINSON and DIAZ, Circuit Judges, and SHEDD, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Seon D. Deabreu, Appellant Pro Se. Jill Schultz Distler, Emmett F. McGee, Jr., JACKSON
LEWIS PC, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Seon D. Deabreu appeals the district court’s order denying reconsideration of its
dismissal of his employment discrimination action against his former employer, United
Parcel Service, Inc. (“UPS”). * Deabreu alleged that in 2008, UPS discriminated against
him on the basis of his religion and ultimately terminated his employment in retaliation for
filing a complaint with the Equal Employment Opportunity Commission (EEOC), in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to
2000e-17 (2018) (Title VII). Finding no reversible error, we affirm.
Title VII requires that an aggrieved person file a civil action within 90 days after the
EEOC issues a right-to-sue letter. 42 U.S.C. § 2000e-5(f)(1). The district court granted
UPS’s motion to dismiss Deabreu’s complaint as untimely. The court also denied
Deabreu’s subsequent motion for reconsideration, which it construed as filed pursuant to
Fed. R. Civ. P. 59(e). We review the denial of motions for reconsideration filed pursuant
to Fed. R. Civ. P. 59(e) or 60(b) for abuse of discretion. Wicomico Nursing Home v.
Padilla, 910 F.3d 739, 750 (4th Cir. 2018) (Rule 59(e) motion); Aikens v. Ingram, 652 F.3d
496, 501 (4th Cir. 2011) (en banc) (Rule 60(b) motion).
Because Deabreu’s motion was not filed within 28 days after the entry of the district
court’s judgment dismissing the action, the motion is properly construed as filed pursuant
to Rule 60(b). See Fed. R. Civ. P. 59(e) (providing 28-day filing period). Nevertheless,
*
On May 23, 2019, we granted UPS’s motion to dismiss as untimely filed
Deabreu’s appeal of the district court’s December 4, 2018, order dismissing the action.
2
“we may affirm on any grounds supported by the record, notwithstanding the reasoning of
the district court.” Kerr v. Marshall Univ. Bd. of Governors, 824 F.3d 62, 75 n.13 (4th Cir.
2016). Having reviewed the record, we conclude that the district court did not abuse its
discretion in denying Deabreu’s motion for reconsideration.
Accordingly, we affirm the district court’s order denying reconsideration. We
dispense with oral argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would not aid the decisional
process.
AFFIRMED
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NUMBER 13-09-00675-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
ROLAND MIGUEL GUZMAN, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 36th District Court
of San Patricio County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Yañez and Garza
Memorandum Opinion by Justice Garza
On March 13, 2009, appellant Roland Miguel Guzman was indicted on one count
of evading arrest or detention, a state-jail felony. See TEX . PENAL CODE ANN . § 38.04(a),
(b)(1)(A) (Vernon Supp. 2009). Pursuant to the terms of a plea agreement, Guzman
pleaded guilty to the offense and was placed on deferred adjudication community
supervision for a period of four years. See TEX . CODE CRIM . PROC . ANN . art. 42.12, § 5(a)
(Vernon Supp. 2009). On October 19, 2009, the State filed a motion to revoke Guzman’s
community supervision, alleging that Guzman had committed seven different violations of
the terms of his community supervision.1 Guzman pleaded “true” to all seven of the
allegations. He was then adjudicated guilty of the underlying offense and sentenced to two
years’ confinement in the State Jail Division of the Texas Department of Criminal Justice.
The trial court certified Guzman’s right to appeal, and this appeal followed. We affirm.
I. ANDERS BRIEF
Guzman’s court-appointed appellate counsel has filed a motion to withdraw and a
brief in support thereof in which he states that he has diligently reviewed the entire record
and that “[t]here are no arguable points of error, fundamental or otherwise, upon which
[Guzman] could obtain relief from the conviction in the trial court . . . .” See Anders v.
California, 386 U.S. 738, 744 (1967). Counsel’s brief therefore meets the requirements of
Anders as it presents a professional evaluation showing why there are no arguable
grounds for advancing an appeal. See In re Schulman, 252 S.W.3d 403, 407 n.9 (Tex.
Crim. App. 2008); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991) (en
banc).
In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.]
1978), counsel has carefully discussed why, under controlling authority, there are no errors
in the trial court’s judgment. Counsel has informed this Court that he has: (1) examined
the record and has found no arguable grounds to advance on appeal, (2) served a copy
of the brief and motion to withdraw on Guzman, and (3) informed Guzman of his right to
1
The State’s initial m otion to revoke alleged that Guzm an violated eight term s of his com m unity
supervision. However, the State abandoned one of the term s at the hearing on the m otion to revoke.
2
review the record and to file a pro se response.2 See Anders, 386 U.S. at 744; Stafford,
813 S.W.2d at 510 n.3. More than an adequate time has passed, and no pro se response
has been filed.
II. INDEPENDENT REVIEW
Upon receiving an Anders brief, we must conduct a full examination of all the
proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S.
75, 80 (1988). We have reviewed the record and find that the appeal is wholly frivolous
and without merit. See Bledsoe v. State, 178 S.W.3d 824, 827-28 (Tex. Crim. App. 2005)
(“Due to the nature of Anders briefs, by indicating in the opinion it considered the issues
raised in the brief and reviewed the record for reversible error but found none, the court of
appeals met the requirements of Texas Rule of Appellate Procedure 47.1.”); Stafford, 813
S.W.2d at 509. Accordingly, we affirm the judgment of the trial court.
III. MOTION TO WITHDRAW
In accordance with Anders, Guzman’s counsel has filed a motion to withdraw. See
Anders, 386 U.S. at 744; see also In re Schulman, 252 S.W.3d at 408 n.17 (citing Jeffery
v. State, 903 S.W.2d 776, 779-80 (Tex. App.–Dallas 1995, no writ.) (“If an attorney
believes the appeal is frivolous, he must withdraw from representing the appellant. To
withdraw from representation, the appointed attorney must file a motion to withdraw
accompanied by a brief showing the appellate court that the appeal is frivolous.”) (citations
omitted)). We grant the motion to withdraw.
2
The Texas Court of Crim inal Appeals has held that “the pro se response need not com ply with the
rules of appellate procedure in order to be considered. Rather, the response should identify for the court
those issues which the indigent appellant believes the court should consider in deciding whether the case
presents any m eritorious issues.” In re Schulman, 252 S.W .3d 403, 409 n.23 (Tex. Crim . App. 2008) (quoting
W ilson v. State, 955 S.W .2d 693, 696-97 (Tex. App.–W aco 1997, no pet.)).
3
We further order that counsel must, within five days of the date of this opinion, send
a copy of the opinion and judgment to Guzman and advise him of his right to file a petition
for discretionary review.3 See TEX . R. APP. P. 48.4; see also In re Schulman, 252 S.W.3d
at 412 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006).
________________________
DORI CONTRERAS GARZA
Justice
Do not publish.
TEX . R. APP. P. 47.2(b)
Delivered and filed the
12th day of August, 2010.
3
No substitute counsel will be appointed. Should Guzm an wish to seek further review of this case
by the Texas Court of Crim inal Appeals, he m ust either retain an attorney to file a petition for discretionary
review or file a pro se petition for discretionary review. Any petition for discretionary review m ust be filed within
thirty days from the date of either this opinion or the last tim ely m otion for rehearing that was overruled by this
Court. See T EX . R. A PP . P. 68.2. Any petition for discretionary review m ust be filed with this Court, after which
it will be forwarded to the Texas Court of Crim inal Appeals. See T EX . R. A PP . P. 68.3, 68.7. Any petition for
discretionary review m ust com ply with the requirem ents of Rule 68.4 of the Texas Rules of Appellate
Procedure. See T EX . R. A PP . P. 68.4.
4
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The principal litigants in this suit are the City of New Braunfels, appellant, who was the sole plaintiff in the trial court, and appellees, City of San Antonio, The San Antonio Public Service Company, hereafter designated SAPSCo., The Guadalupe-Blanco River Authority, and The Lower Colorado River Authority, the latter two being hereafter designated GBRA and LCRA, respectively. Other appellees will be named only as required.
The primary purpose of this suit is to cancel, or have declared void, all instruments by which the City of San Antonio acquired title to an electric generating plant located within the corporate limits of New Braunfels.
Appellant's pleadings contained a count in trespass to try title, but as to this feature of the case it is not here contended that appellant has any character of title to the properties involved.
Further allegations of appellant, in substance, are:
Prior to October 24, 1942, the electric generating plant, known as the Comal Power Plant, was located within its corporate limits and had been operated by the SAPS Co. for many years under a franchise originally issued by New Braunfels to Comal Power Company, a predecessor of SAPS Co. The electric utility properties of the SAPS Co. within the corporate limits of New Braunfels included not only the Comal Power Plant itself, located upon a forty-acre tract adjoining Landa Park, but also large switchyards, high voltage transmission lines, emanating from the plant and going in all directions across the public streets, and grounds and other territory of the city to points outside its limits, as well as other apparatus necessary to the generation and transmission of electricity and claims to the waters of the Comal Springs and Comal River and to a fifteen-foot strip from the margin of the water along each bank of said river from the plant site up the stream through Landa Park to the Comal Springs. On October 24, 1942, San Antonio purported to acquire all of the utility properties of the SAPSCo., except certain local distribution systems in cities other than San Antonio, and leased the portions of such utility properties in New Braunfels to the GBRA and LCRA for operation by them under the terms of such lease. The particular acts on the part of San Antonio and its subordinates, complained of in the petition, were the attempt by San Antonio to acquire ownership of the electric utility properties within the corporate limits of New Braunfels, the operation thereof by San Antonio, either by *Page 819
itself or through its lessees, the extension by San Antonio of its electric lines into the corporate limits of New Braunfels, the use of the streets, alleys, and public grounds of New Braunfels, by San Antonio and its lessees, for the maintenance of electric poles, high voltage wires, and other electric apparatus, and the assertion of rights in and claims to the springs, waters, and a part of the bed and banks, of the Comal River within the corporate limits of New Braunfels.
The validity of these actions, together with all instruments executed and other things done in connection therewith, insofar as they related to these particular utility properties within the corporate limits of New Braunfels, was questioned on each of the following grounds:
1. San Antonio was expressly prohibited by the Constitution and statutes of this State from invading New Braunfels, a home rule city, for such purposes, and thereby encroaching upon and violating New Braunfels' right of local self-government, guaranteed it under the Home Rule Amendment, Vernon's Ann.St.Const. Art. 11, § 5, and statutes of this State.
2. San Antonio not only lacked authority under the law to go into the corporate limits of another home rule city for such purposes, but was expressly prohibited from so doing.
3. Such acts were contrary to the public policy of this State.
4. Such acts destroyed vested property rights of New Braunfels under which the plant was being operated, without compensation and due process of law, in violation of the Constitution of the United States and of Texas.
Appellant sought the following relief:
1. Decreeing void and illegal all claims of San Antonio, and of all other parties to this suit claiming by, through, or under that City, of any interest in or to any of the utility properties located within the corporate limits of New Braunfels, and in and to the Comal Springs, Comal River, its waters and banks, and decreeing void and illegal all acts and instruments attempting to create such claims insofar as they related to the properties in New Braunfels.
2. Granting an injunction restraining San Antonio and its subordinate claimants from doing any of the acts complained of, and from interfering with the exercise by New Braunfels of its governmental and municipal functions in connection with the Comal Plant and incident properties, including the Comal River, Comal Springs, and waters thereof within the limits of New Braunfels, and requiring the removal of all electrical equipment and apparatus from the streets.
3. Impressing upon the Comal Plant and its incident properties within the corporate limits of New Braunfels a trust arising by operation of law, for the use and benefit of New Braunfels.
4. Appointing a receiver with authority to take charge of and operate the Comal Plant and all incident properties claimed by San Antonio and its subordinates within the limits of New Braunfels, and to sell said utility properties at receiver's sale to New Braunfels, or in the alternative, to some purchaser not disqualified by law to operate the same within said city under proper franchise therefrom, the proceeds of such sale to be paid into the registry of the court and distributed under its direction.
5. Requiring an accounting to New Braunfels of all monies that had come into the hands of San Antonio or its subordinate claimants through the operation of the Comal Plant.
6. Granting general legal and equitable relief.
As to appellees' answer it is only necessary to state that estoppel, the nature of which will be later discussed, was specially pleaded.
Trial without a jury resulted in a judgment that appellant take nothing by its suit and that GBRA recover on its cross-action the title to and possession of all properties described in appellant's petition, this recovery being without prejudice to the rights, titles and claims of all other appellees.
There are no findings of fact or conclusions of law.
The facts are undisputed and were, for the most part, before the Supreme Court in the case of Guadalupe-Blanco River Au *Page 820
thority v. City of San Antonio, 145 Tex. 611, 200 S.W.2d 989, to which opinion reference is here made.
We will, therefore, be brief in reviewing the background and history of this litigation and state only such facts as are necessary for disposition of the issues before us.
The land upon which the power plant is now located was originally owned by the Landa family of Comal County. As far back as the Civil War, the Landas had used the property for the purpose of developing water power, and conducting milling operations. About 1900, Harry Landa had improved and increased the water power development by the construction of an artificial channel which collected the waters of Comal Springs, located on his property, and conducted them to a dam where water wheels were situated.
In 1925, E. H. Kifer, general manager of SAPS Co. made extensive investigations for the purpose of determining the best location of a new generating plant needed by the company to supply its electric system and customers. The Landa site was selected because of its proximity to the City of San Antonio, the abundance of cool water and other economic factors.
On August 17, 1925, the Landas conveyed to the Comal Power Company, for a cash consideration of $600,000, portions of their Comal County properties, including the tract of land upon which the Comal Power Plant was built and is now located, certain railroad trackage, the old power plant, the electric distribution system serving the City of New Braunfels, riparian and water rights along and in the Comal River, together with the lands underlying Comal Springs and the Comal River, the artificial channel and a strip fifteen feet wide from the water's edge along the Spring, River and Channel; the Landas reserving certain easements and water rights.
The remainder of the Landa property was acquired by the City of New Braunfels by deed expressly providing that it was subject to the terms and easements contained in the Landa conveyance to the Comal Power Company.
The Comal Power was substantially complete by the end of 1926, and about January 1, 1927, delivery of electricity was commenced. High lines connecting the plant with the City of San Antonio were also placed in use about January 1, 1927. Since 1927 an additional line has been placed on one-line right of way and conductors installed so as to double the capacity of this line.
Since completion of the plant over 90 per cent of the domestic, commercial and industrial consumers, both in number connected with the company system and in amount of electricity consumed, were located within the City of San Antonio or within ten miles of its corporate limits. Approximately 3 per cent of the power produced by this plant is used within the City of New Braunfels.
The estimated population of San Antonio at the time of trial was 353,854, and of New Braunfels between ten and fifteen thousand.
The Comal Power Company, apparently an alter ego of SAPSCo., conveyed the properties acquired by it from the Landas, including the newly constructed Comal plant, to SAPSCo., January 1, 1928.
All of the stock of SAPSCo. was held by the American Light and Traction Company. In 1941, the Securities and Exchange Commission ordered this company to dispose of its interest in SAPSCo.
The City of San Antonio and GBRA both desired to acquire these interests. This rivalry resulted in the filing of many law suits, one of which was a condemnation suit instituted by the City of New Braunfels to condemn the properties of SAPSCo. located within New Braunfels. The City of San Antonio was made a party to this suit.
On October 24, 1942, all of these suits were dismissed, an agreement having been reached whereby the City of San Antonio acquired certain of the properties involved, including the Comal Power Plant, and GBRA was given a 30-year lease of this plant with an option to buy. This lease has, with the consent of the City of San Antonio, been assigned to LCRA. The details of these transactions are fully set out in the opinion of the Supreme Court, above referred to, in which the agreement *Page 821
made was held valid as between the City of San Antonio and GBRA.
The electric distribution system within the City of New Braunfels, a portion of SAPSCo's. property, is now owned by the City of New Braunfels and the required power is obtained from the Comal plant by purchase from LCRA, the sub-lessee of the City of San Antonio. It is in connection with acquisition of this distribution system by New Braunfels that appellees base their plea of estoppel.
Preliminary to the facts to be stated as bearing on the issue of estoppel, we note that the Guadalupe Electric Company was a corporation set up for the purpose of holding title to the distribution systems in the cities of New Braunfels, Hondo and Boerne, with the understanding that it would, upon request, convey to each of the cities the distribution system within its limits at a stipulated price.
On September 4, 1942, the City of New Braunfels filed a condemnation suit against SAPSCo. in the County Court of Comal County, wherein it sought to condemn all of the property of SAPSCo. situated in the City of New Braunfels, including the distribution system, the Comal plant property, the office building, and all other property of the Company located in the City. On October 20, 1942, the City of New Braunfels filed a supplemental petition in the condemnation suit, making the City of San Antonio a party defendant, in which supplemental petition it alleged that it had ascertained, and alleged the fact to be, that the City of San Antonio was claiming and asserting some right, title or interest in and to the properties. At 9:20 o'clock on the morning of October 24, 1942, this condemnation suit was dismissed.
On the 24th day of October, 1942, the day the overall transaction was closed, the City of New Braunfels entered into an agreement with the Guadalupe Electric Company for the purchase by the City and sale by the Company of "all of the electric distribution properties heretofore owned by the San Antonio Public Service Company," in New Braunfels, including office buildings, automobile equipment and other property, which contract provided that the purchase should be completed on or before December 22, 1942, and specifically providing: "It is understood and agreed between the parties that the performance of this contract is conditioned upon, but only upon, the closing of a transaction whereby the City of San Antonio acquired the gas and electric properties now owned by San Antonio Public Service Company, in Bexar County, Texas, and surrounding territory, in connection with which transaction Seller is to acquire title to the municipal distribution property hereinabove described, and in which transaction the title to the property covered by the above mentioned option is to be acquired by the City of San Antonio, and the option hereinabove mentioned is to be granted by the City of San Antonio to the City of New Braunfels by an ordinance adopted by the City Commission of San Antonio, as a part of the closing of the entire purchase transaction." (The option referred to was an option to purchase rural lines adjacent to but outside the boundaries of the City of New Braunfels.)
While this contract was dated October 24, 1942, it was in fact authorized by an ordinance of the City Council of New Braunfels at a meeting held on October 19, 1942. The properties covered by the agreement were actually conveyed to the City of New Braunfels by Guadalupe Electric Company by instrument dated November 17, 1942.
The price paid by New Braunfels for the distribution system was about $100,000 less than the appraised value in the general appraisal of all the properties of SAPSCo.
New Braunfels pays no more for electric power produced by the Comal plant than San Antonio pays. Because there is no transmission charge, New Braunfels pays less for this power than do Hondo, Boerne, Floresville, Stockdale, and other towns who receive power from the Comal plant.
In 1945, New Braunfels made a net profit of $67,474.21 from the operation of its distribution system, after deducting $36,000 as the equivalent of taxes lost by the transfer of the Comal plant from private to public ownership; a profit of $64,915.94, after making a similar deduction, was made *Page 822
in 1946. Other years during which New Braunfels has owned the distribution system have shown like profits.
It is also shown that the City of San Antonio executed an agreement with the City of New Braunfels, which agreement was in the form of an option giving the City of New Braunfels the right to purchase the rural lines adjacent to and outside the city limits of the City of New Braunfels, being the option referred to in the contract between New Braunfels and Guadalupe Electric Company, which option agreement was executed by both the City of San Antonio and the City of New Braunfels as of October 24, 1942, and which was approved by ordinance of the City Commission of the City of New Braunfels on April 7, 1943.
On April 22, 1943, the City of New Braunfels filed a suit against the City of San Antonio in the District Court of Comal County, Cause No. 3606, seeking to enforce this contract. Citation was issued and served, San Antonio filing a plea of privilege and New Braunfels filing a controverting plea, but no other action has been taken in the cause, the plea of privilege and controverting plea having been continued by agreement, and the cause is still pending.
The Supreme Court in the GBRA case, supra, has held that the matters concluded on the 24th day of October constituted one transaction. This being true there is no question but that the acquisition of the Comal plant by the City of San Antonio was an integral part of that transaction and that San Antonio could not be held to a performance of other provisions of the agreements, as between the parties thereto, if this portion of the overall contract is invalid.
New Braunfels was not a formal party to that overall transaction, yet its activities and conduct show that it was not in ignorance of what was transpiring. Whether New Braunfels was originally bound by the comprehensive transaction of October 24, 1942, we need not determine, because we are fully convinced that it became bound by subsequent events.
The overall transaction contemplated and was entered into upon the express understanding that New Braunfels was to be conveyed the local distribution system for a stipulated amount if it so requested. This then constituted New Braunfels a third party beneficiary of such transaction (contracts), and upon electing to accept under the provisions thereof, as it did, New Braunfels became bound by the terms and provisions of the overall transaction of which it had knowledge. Austin Bridge Co. v. Teague, 137 Tex. 119, 152 S.W.2d 1091.
Being or becoming bound by the overall transaction of October 24, 1942, it was incumbent upon appellant to return or offer to return the benefits which had accrued to it thereunder, in order to obtain equitable relief of the nature sought. Texas Employers Ins. Ass'n v. Kennedy, 135 Tex. 486,143 S.W.2d 583.
Appellant's offer to do equity was couched in the following language: "In connection with all the relief prayed for in this petition, the plaintiff city asks that the court adjust the equities, and it offers to do equity by complying with any and all orders, requirements and directions of this conformable to the rules of law and equity and hereby tenders and offers to pay into the registry of this court in cash such sums of money as the court may finally determine to be proper and order to be paid under the rules of law and equity to entitle the plaintiff city to the relief sought herein, or plaintiff city will give such security for the payment of such money as the rules of law and equity may require in the adjustment of the equities between the parties."
This offer to do equity is very general. Appellant offered to do nothing except what the court might order it to do. This would be its obligation, be it willing or unwilling. No tender is made of the distribution system; no offer is made to return the profits made from its operation; no promise is given to dismiss the suit pending against the City of San Antonio to compel conveyance or rural lines; and no assurance is given that appellant is able, even if willing, to restore the status quo, it *Page 823
appearing that appellant has encumbered the distribution system, and there is no pleading or evidence that these creditors are willing to release their claims, nor that they could be compelled to do so.
When we consider that New Braunfels is realizing about $65,000 per year profit from the operation of the distribution system, over and above its tax loss, we are unwilling to construe its general offer to do equity as encompassing all or any of the matters above referred to, or as being legally sufficient. After all "the courts are not to determine arbitrarily what the equities are between the parties, but that question must be presented by proper pleadings, and the issue thus presented determined on proper evidence." 30 Corpus Juris Secundum, Equity, § 91, page 464.
The trial court was entitled to know what appellant was willing and able to do in order to obtain the relief sought. Especially is this true here where the relief sought is unusual in character, harsh in the extreme, and if granted would cause confusion, if not panic, among the parties to the contracts of October 24, 1942, cities who have purchased and operated portions of the properties involved, and investors who have advanced hundreds of thousands of dollars upon the assumed validity of the entire transaction.
That appellant was willing to repay a half million dollars in profit and give up its distribution system netting $100,000 per year, in order that the Comal plant be returned to private ownership and its taxable status restored, cannot be reasonably inferred from the pleadings or evidence.
Having construed appellant's pleading and the evidence as being insufficient to show an offer and the ability to restore the status quo, we find appellant here in the same position as that occupied by the City of San Antonio in the GBRA case, supra, where the court held: "The contract by which the City acquired the property is a very beneficial one to the City. Having accepted and retained the beneficial part of the contract, it cannot now reject the disadvantageous part by pleading the mere want of corporate power of the other party to enter into the contract." 200 S.W.2d 998.
The same authority makes the doctrine of estoppel applicable to appellant under the facts of this case.
We could, but will not, rest our decision here, and will undertake to dispose of other questions presented.
Does one Home Rule city (San Antonio) have the right to own an electric generating plant within the corporate limits of another Home Rule city (New Braunfels)?
Appellant says "No" for the following reasons:
(1) Such ownership would authorize San Antonio to encroach upon and violate New Braunfels' right of local self-government, including (a) its right to regulate public utilities; (b) its exclusive right of control over public streets, alleys and grounds; (c) its right to widen and improve creeks and rivers; (d) its right to levy and collect taxes; and (e) its right to exercise its police powers.
Upon such premise, appellant charges the City of San Antonio with invasion, the destructive effect of which has been graphically depicted.
Except as to the question of taxes, it is admitted that San Antonio has as yet done nothing to invade New Braunfels and has not threatened to do anything of the kind. It is the fear of what may happen that causes alarm.
Applicable to such a situation is the holding of the Supreme Court in City of Pelly v. Harris County Water C. I. District, Tex. Civ. App.198 S.W.2d 450, 454: "The two propositions last considered, as well as much of respondents' argument in support of other contentions, are based on the assumption that the City of Pelly will attempt to take over the annexed territory in utter disregard for respondents' constitutional and statutory powers and obligations and that, therefore, the annexation is void because both the city and the district cannot function harmoniously in the `common orbit.' In the first place, we are not justified in assuming that the petitioners will make any such attempt. Rather we must assume that Pelly will proceed amicably in an effort *Page 824
to adjust any conflicts by mutual agreement. But if it should not make that effort, or if accord cannot be reached by it and the district concerned, then it will become the province and duty of the court to adjudicate the differences. That is clearly the effect of Harris County Drainage Dist. No. 12 v. City of Houston et al., 35 S.W.2d 118, a Commission of Appeals opinion which had the express approval of this court. See also City of Breckenridge v. Stephens County, 120 Tex. 318, 40 S.W, 2d 43."
Furthermore, the City of San Antonio disclaims any legal right to ever interfere with the legislative or governmental powers of the City of New Braunfels. The following excerpts are taken from its brief:
"Both the City of San Antonio and Lower Colorado River Authority took the position in the trial court that neither of them had any governmental authority or were vested with any police powers within the corporate limits of the City of New Braunfels."
"The City of New Braunfels makes the flat contention that any provisions of the statutes extending the legislative or police powers of other cities or state agencies into the corporate limits of the City of New Braunfels, would be unconstitutional and void, because in conflict with the Home Rule amendment to the State Constitution. In this latter contention the City of New Braunfels is undoubtedly correct, and being correct in this contention, it is necessarily wrong when it contends that either the City of San Antonio or Lower Colorado River Authority have or purport to have any legislative, governmental or police power within the boundaries of the City of New Braunfels with which the powers of the City of New Braunfels could in any way conflict.
"The `invasion' constantly complained of in the brief is an invasion not by mere proprietary ownership of private property, but an invasion producing conflicts between governmental powers. Since no such conflict is shown by the record to have actually occurred in fact, the Court certainly cannot assume that such a conflict will occur in the future, especially when such occurrence would come about in utter violation of and without the slightest support from the laws of the State."
"Under the law as announced both in the decisions of the Texas courts and the decisions of practically all other courts in the United States, the City of San Antonio, to the extent of its ownership of the Comal plant and appurtenant transmission lines, stands in the identical position of San Antonio Public Service Company, the predecessor private corporation, in every respect. The City of San Antonio, upon acquiring the property, has held it with only such rights as the private corporation had, and owing every duty owed by the private corporation."
"* * * As we have stated before, the City of San Antonio and Lower Colorado River Authority, being in New Braunfels solely in their proprietary capacity and engaged in proprietary activities, are subject to any ordinance that any private corporation under the same facts would be subject to."
"We repeat that any ordinance of the City of New Braunfels with reference to the property here in question which would be valid as against the San Antonio Public Service Company, as the owner and operator of the property, would be equally valid and enforcible against the City of San Antonio and Lower Colorado River Authority."
Surely it cannot be said that there exists any present controversey between appellant and the City of San Antonio with respect to the exercise by the City of New Braunfels of all its governmental powers unaffected by the ownership by San Antonio of the Comal plant; nor can it be said that any such future controversy is contemplated or threatened.
It is well settled that courts do not sit for `the purpose of deciding abstract questions. 3 Tex.Jur., p. 68.1
We are, therefore, convinced that the questions presented as to the right of *Page 825
the City of San Antonio to interfere with the power of local self-government of New Braunfels are in the abstract and that we are without authority to consider them.
Conceding such questions to be real, there is no justification for appellant's contention, despite San Antonio's insistence to the contrary, that San Antonio has or will have the right to interfere with the power of New Braunfels to govern itself. The very authorities cited by appellant plainly hold that no such right of interference exists. City of Houston v. City of Magnolia Park, 115 Tex. 101, 276 S.W. 685; City of Galena Park v. City of Houston, Tex. Civ. App.Galveston, 133 S.W.2d 162, writ of ref.; Dallas Power and Light Co. v. Carrington, Tex. Civ. App.Dallas, 245 S.W. 1046 writ dis.
Statutes such as Article 1108, Vernon's Ann.Civ.St., which provides that a city owning certain public utilities shall have the power and right to make rules and regulations and prescribe penalties concerning the same, and art. 1116, V.A.C.S., providing that a city may prescribe penalties for trespassing on or injuring any such public utility, must, in order to be constitutional, be construed as bestowing no power upon one home rule city to enact ordinances effective within the limits of another home rule city. City of Houston v. City of Magnolia Park, supra.
The one substantial complaint made by appellant is that San Antonio's ownership of the Comal plant results in the property being tax exempt. This is correct. Art. XI, Sec. 9, Texas Constitution, Vernon's Ann.St. A M Consolidated Ind. School Dist. v. City of Bryan, 143 Tex. 348,184 S.W.2d 914.
The Constitution having so provided, it is not within the power of the courts to grant relief to any taxing authority for loss of taxes involved. Many cities constantly lose tax revenues by the transfer of property from private to public ownership. The City of Austin is an excellent example. New Braunfels should be happy in the fact that through the wisdom, activity and business acumen of its governing body, it was able to convert its tax loss into a profit of more than $65,000 per year. No other taxing authority, to our knowledge, has been so fortunate.
The City of New Braunfels was in no way misled or deceived as to the tax matter, as is shown by the minutes of its City Commission on November 6, 1942, when certain amendments to the Electric Distribution System Trust Indenture were up for consideration. The amendments had to do with the authority of the Board of Trustees of the System to reimburse the City of New Braunfels, the New Braunfels Independent School District and the County of Comal for tax losses to be sustained in the transfer of properties of the San Antonio Public Service Company to public ownership. The Mayor voted "No" to the proposal, and gave as his reason the following: "In my opinion, this is strictly a business affair of the City of New Braunfels, and therefore, I, as Mayor, in my opinion, cannot act either for or against the New Braunfels Independent School District nor the County of Comal, nor do I want to discriminate against the State of Texas, which in this instance is affected in proportion in this tax loss."
As to the right of San Antonio to own an electric generating plant within the City of New Braunfels, we are cited to and have found no constitutional or statutory prohibition. Affirmatively, the city charter of San Antonio provides that the City shall have the power to:
"* * * take, hold, acquire and convey, lease and dispose of any property whatever in said city limits, and for sewer, sanitary, cemetery, and other corporate purposes, to acquire necessary property by purchase or condemnation within or without the city limits, and to lease, convey and alien the same when no longer required."
Art. 1175, V.A.C.S., provides:
"Cities adopting the charter or amendment hereunder shall have full power of local self-government, and among the other powers that may be exercised by any such city the following are hereby enumerated for greater certainty: * * *
"13. To buy, own, construct within or without the city limits and to maintain and operate a system or systems, of gas, or *Page 826
electric lighting plant, telephone, street railway, sewerage plants, fertilizing plants, abattoir, municipal railway terminals, docks, wharfs, ferries, ferry landings, loading and unloading devices and shipping facilities, or any other public service or public utility."
Art. 1108, V.A.C.S., provides:
"Any town or city in this State which has or may be chartered or organized under the general laws of Texas, or by special Act or charter, and which owns or operates waterworks, sewers, gas or electric lights, shall have the power and right:
"1. To own land for such purposes within or without the limits of such town or city.
"2. To purchase, construct and operate water, sewer and gas and electric light systems inside or outside of such towns or city limits, and regulate and control same in a manner to protect the interests of such town or city.
"3. To extend the lines of such system outside of the limits of such towns or cities and to sell water, sewer, gas, and electric light and power privileges or service to any person or corporation outside of the limits of such towns or cities, or permit them to connect therewith under contract with such town or city under such terms and conditions as may appear to be for the best interest of such town or city; provided that no electric lines shall, for the purposes stated in this section, be extended into the corporate limits of another incorporated town or city. (As amended in 1937.)
"4. To prescribe the kind of water or gas mains or sewer pipes and electric appliances within or beyond the limits of such town or city, and to inspect the same and require them to be kept in good order and condition at all times and to make such rules and regulations and prescribe penalties concerning same, as shall be necessary and proper."
No Texas cases directly in point are cited.
In City of Dallas v. State, Tex. Civ. App. Fort Worth, 28 S.W.2d 937 writ ref., it was held that a water reservoir owned by the City of Dallas in Denton County was exempt from taxation, thus sustaining the right of Dallas to own such property.
A similar holding was made in City of Abilene v. State, Tex. Civ. App.Eastland, 113 S.W.2d 631 writ dis.
In A M Consolidated School District v. Bryan, supra, the City of Bryan owned and operated a rural electrification system, with lines in Brazos, Burleson and Robertson Counties, outside the City of Bryan, furnishing electric power to surrounding rural territory and to at least one incorporated town. This property was held exempt from taxation.
Appellant cites and relies upon Central States Electric Co. v. Incorporated Town of Randall, 230 Iowa 376, 297 N.W. 804, and Long v. Town of Thatcher, 62 Ariz. 55, 153 P.2d 153, 157.
In the Iowa case the court held, under the statutes of that State, that one town could not grant to another town a franchise to construct and operate and electric distribution system within the first town.
In the Arizona case the town of Thatcher made a contract with a utility corporation to purchase its properties consisting of an electric power plant and distribution lines, 10% of which were located in Thatcher and the rest principally in the town of Stafford, where the power plant was located. The sale was enjoined, notwithstanding the provision of a statute which provided that a municipality should have the power to acquire any utility undertaking "within or without its corporate limits." Code Ariz. 1939, § 16-2603. This language was held not to give a city "the power to invade the corporate limits of another municipality, but limits its operators to its own territory not within the limits of another incorporated town already furnishing light and power to its inhabitants."
If this case is distinguishable, it is upon the grounds that a local distribution system was involved in the purchase there sought to be made; that the utility corporation operated under a certificate of convenience and necessity granted by the Arizona corporations commission and not under franchises granted by either of the two towns; the enforcement of the contract was immediately attacked in court and the town *Page 827
of Stafford in no way ratified the contract or accepted any benefits under it; and, because of differences in our statutes, now to be discussed.
Our statute (art. 1108, V.A.C.S.), after providing in Secs. 1 and 2 that cities may own land within or without the limits of the city for the purpose of operating an electric light system and may purchase such a system within or without the city specially provides in Sec. 3 that the lines of such system may be extended and electricity sold outside of the city, "provided that no electric lines shall, for the purpose stated in this section, be extended into the corporate limits of another incorporated town or city." No similar statutory provision is noted in the Arizona decision.
Sec. 3 clearly means that one city may not extend its electric lines into another city for the purpose of selling electricity therein. This is a limitation, and the only limitation made upon the right of a city to own an electric light system. It is a locative limitation when the purpose is to sell electricity. The inclusion of this specific limitation in the statute excludes, in our opinion, and under well settled rules of statutory construction, any further limitation upon the broad and general language, "within or without the limits" of a city or town. Federal Crude Oil Co. v. Yount Lee Oil Co., 122 Tex. 21, 52 S.W.2d 56.
No electric lines owned by San Antonio extend into the City of New Braunfels for the purpose of selling electricity therein. Transmission lines run from the Comal plant to points outside the city, which fact does not violate the statute.
Many other questions are raised and discussed by appellant concerning the rights, duties and powers of New Braunfels as a Home Rule city and the possible interference therewith by the City of San Antonio, such as its right to prohibit or regulate the use of its streets by any electric light company, its privilege of granting franchise for such purpose, and to charge compensation therefor, the power to control utilities, regulate their rates, the kind of service to be furnished, the power to require extentions and other municipal powers and duties. Great stress is also made of the possibility that San Antonio will some day appropriate all of the power produced by the Comal plant to the ruination of the City of New Braunfels.
We do not feel it is our duty, or even appropriate for us, to undertake, were we qualified, to write a treatise upon municipal law which would settle, in futuro, all controversies which may arise between these two cities. We, of course, do not know, if any further dispute will occur, but we do believe we are safe in prophesying that not all of the imaginary conflicts will develop.
We repeat our holding that the City of San Antonio has no lawful right to interfere with or encroach upon any constitutional or statutory power or duty belonging to the City of New Braunfels. Should it attempt to do so, the courts will be open to grant redress.
This record reflects a most efficient use of pre-trial procedure by the trial court and all counsel, and we wish to commend them for taking advantage of its benefits.
The judgment of the trial court is affirmed.
Affirmed.
1 The Declaratory Judgment Act, Vernon's Ann.Civ.St. Art. 2524-1, is not involved in this suit.
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NUMBER 13-09-00298-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
GUADALUPE BUSTILLOS, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 36th District Court
of San Patricio County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Yañez and Garza
Memorandum Opinion by Justice Garza
On February 21, 2001, appellant Guadalupe Bustillos was tried on one count of
aggravated assault with a deadly weapon, a second-degree felony. See TEX . PENAL CODE
ANN . § 22.02(a)(2) (Vernon Supp. 2009). A jury found Bustillos guilty of the offense and
sentenced him to five years’ imprisonment and assessed a fine of $2,000.00. His
sentence, however, was suspended and he was placed on community supervision for five
years. See TEX . CODE CRIM . PROC . ANN . art. 42.12, § 5(a) (Vernon Supp. 2009). On
February 27, 2009, the State filed a motion to revoke, alleging that Bustillos violated three
different terms of his community supervision.1 Bustillos pleaded “true” to all three of the
allegations. The trial court found Bustillos guilty of the underlying offense and sentenced
him to five years’ confinement in the Institutional Division of the Texas Department of
Criminal Justice. The trial court certified Bustillos’s right to appeal, and this appeal
followed. We affirm.
I. ANDERS BRIEF
Bustillos’s court-appointed appellate counsel has filed a motion to withdraw and a
brief in support thereof, stating that his review of the record yielded no grounds or error
upon which an appeal can be predicated. See Anders v. California, 386 U.S. 738, 744
(1967) (“[t]here are no arguable points of error, fundamental or otherwise, upon which
appellant could obtain relief from the conviction in the trial court . . . .”). Counsel’s brief
therefore meets the requirements of Anders as it presents a professional evaluation
showing why there are no arguable grounds for advancing an appeal. See In re Schulman,
252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008); Stafford v. State, 813 S.W.2d 503, 510
n.3 (Tex. Crim. App. 1991) (en banc).
In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.]
1978), counsel has carefully discussed why, under controlling authority, there are no errors
in the trial court’s judgment. Counsel has informed this Court that he has: (1) examined
the record and has found no arguable grounds to advance on appeal; (2) served a copy
of the brief and motion to withdraw on Bustillos; and (3) informed Bustillos of his right to
1
Since Bustillos’s trial in 2001, the State had filed five separate m otions to revoke his com m unity
supervision. Each m otion to revoke resulted in either m odification to the term s of the com m unity supervision,
or an extension of the com m unity supervision. At the tim e of the hearing on the State’s February 27, 2009
m otion to revoke, Bustillos had already been on com m unity supervision for nine years.
2
review the record and to file a pro se response.2 See Anders, 386 U.S. at 744; Stafford,
813 S.W.2d at 510 n.3. More than an adequate time has passed, and no pro se response
has been filed.
II. INDEPENDENT REVIEW
Upon receiving an Anders brief, we must conduct a full examination of all the
proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S.
75, 80 (1988). We have reviewed the record and find that the appeal is wholly frivolous
and without merit. See Bledsoe v. State, 178 S.W.3d 824, 827-28 (Tex. Crim. App. 2005)
(“Due to the nature of Anders briefs, by indicating in the opinion it considered the issues
raised in the brief and reviewed the record for reversible error but found none, the court of
appeals met the requirements of Texas Rule of Appellate Procedure 47.1.”); Stafford, 813
S.W.2d at 509. Accordingly, we affirm the judgment of the trial court.
III. MOTION TO WITHDRAW
In accordance with Anders, Bustillos’s counsel has filed a motion to withdraw. See
Anders, 386 U.S. at 744; see also In re Schulman, 252 S.W.3d at 408 n.17 (citing Jeffery
v. State, 903 S.W.2d 776, 779-80 (Tex. App.–Dallas 1995, no pet.) (“If an attorney believes
the appeal is frivolous, he must withdraw from representing the appellant. To withdraw
from representation, the appointed attorney must file a motion to withdraw accompanied
by a brief showing the appellate court that the appeal is frivolous.”) (citations omitted)). We
grant the motion to withdraw.
We further order that counsel must, within five days of the date of this opinion, send
2
The Texas Court of Crim inal Appeals has held that “the pro se response need not com ply with the
rules of appellate procedure in order to be considered. Rather, the response should identify for the court
those issues which the indigent appellant believes the court should consider in deciding whether the case
presents any m eritorious issues.” In re Schulman, 252 S.W .3d 403, 409 n.23 (Tex. Crim . App. 2008) (quoting
W ilson v. State, 955 S.W .2d 693, 696-97 (Tex. App.–W aco 1997, no pet.)).
3
a copy of the opinion and judgment to Bustillos and advise him of his right to file a petition
for discretionary review.3 See TEX . R. APP. P. 48.4; see also In re Schulman, 252 S.W.3d
at 412 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006).
DORI CONTRERAS GARZA
Justice
Do Not Publish.
TEX . R. APP. P. 47.2(b)
Delivered and filed the
19th day of August, 2010.
3
No substitute counsel will be appointed. Should Bustillos wish to seek further review of this case
by the Texas Court of Crim inal Appeals, he m ust either retain an attorney to file a petition for discretionary
review or file a pro se petition for discretionary review. Any petition for discretionary review m ust be filed within
thirty days from the date of either this opinion or the last tim ely m otion for rehearing that was overruled by this
Court. See T EX . R. A PP . P. 68.2. Any petition for discretionary review m ust be filed with this Court, after which
it will be forwarded to the Texas Court of Crim inal Appeals. See T EX . R. A PP . P. 68.3, 68.7. Any petition for
discretionary review m ust com ply with the requirem ents of Rule 68.4 of the Texas Rules of Appellate
Procedure. See T EX . R. A PP . P. 68.4.
4
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This cause having heretofore been submitted to the Court upon the transcript of the record of the judgment herein, and briefs and argument of counsel for the respective parties, and the record having been seen and inspected, and the Court being now advised of its judgment to be given in the premises, it seems to the Court that there is no error in the said judgment; it is, therefore, considered, ordered and adjudged by the Court that the said judgment of the Circuit Court be, and the same is hereby affirmed.
ELLIS, C. J., AND STRUM AND BROWN, J. J., concur. *Page 198
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This is an appeal by the defendant from a judgment in favor of the plaintiff for damages. The facts upon which the judgment is based are as follows:
[1] At the time the alleged injuries were suffered by the plaintiff, he and the defendant were residing on a ranch near Redding. The defendant "wanted to see the country over there at Goose Valley," and he asked the plaintiff "to go along with him and show him the country," the plaintiff being familiar therewith and the roads leading thereto, while the defendant was not. The plaintiff accepting the invitation, the parties proceeded on the contemplated journey in the defendant's Buick touring car, driven by the defendant. A part of their course was along the highway running easterly from Redding to Burney. When they had reached a point within about three miles of Burney they came to a straight and comparatively level stretch of road about a mile in length, at the end of which the highway curves to the left. The defendant drove over this stretch of road at a speed of between fifty and fifty-five miles an hour and continued around the curve at the same speed until his automobile ran off to the right and into a large tree about 290 feet from the commencement of the curve, thereby causing the injuries for which the plaintiff claims damages. During all this time the plaintiff, who is a half-blood Indian, was watching the speedometer and knew the speed at which the automobile was going, but he made no protest or suggestion to the defendant in relation thereto. The plaintiff testified that he did not make any protest because he was "afraid he would go faster" *Page 86
and that he "thought he would slack up a little" at the curve.
Appellant contends that the plaintiff was guilty of contributory negligence as a matter of law and that a nonsuit should have been granted. A similar contention was considered and answered in the negative by the Supreme Court in Shields v.King, 207 Cal. 275 [277 P. 1043], and in Benjamin v.Noonan, 207 Cal. 279 [277 P. 1045]. Those cases and the authorities cited therein are deemed decisive of this.
[2] Complaint is made of the following instruction, given at the plaintiff's request:
"You are instructed that the maximum speed at which a motor vehicle was permitted to travel on the public highway in the state of California on the 21st day of August, 1927, was thirty-five miles per hour, and if you believe from the evidence that the defendant, L.P. Hallett, was driving the automobile in which the plaintiff was riding, at a rate of speed in excess of thirty-five miles per hour at the time the accident happened, the said defendant was operating said automobile in violation of the law of the state of California, and if said violation was the proximate cause of the accident, defendant was guilty of negligence as a matter of law, and if said negligence was the proximate cause of the injury to plaintiff, your verdict must be in favor of the plaintiff."
Another instruction to the same effect was given. Admittedly the instruction is erroneous in stating that the speed limit was thirty-five miles an hour at the time of the accident, August 21, 1927. (California Vehicle Act, sec. 113, Stats. 1927, p. 1436.) The error in the instruction was not prejudicial, however, because the uncontradicted evidence is to the effect that the speed was negligently excessive. The plaintiff testified that the defendant was driving in excess of fifty miles an hour at the time of the accident. No attempt was made to overcome this evidence. The defendant did not testify in the case, and his silence tends to strengthen the case made by the plaintiff.
[3] The court, after reading subdivision (a) of section 113, instructed the jury that if the defendant drove his automobile in violation of that subdivision "he was guilty of *Page 87
negligence as a matter of law, and if such negligence was the proximate cause of the injury to plaintiff, your verdict must be in favor of the plaintiff." In another instruction the court stated that if the defendant "failed to exercise ordinary care in the operation of the automobile, . . . and that by reason of the failure of said defendant to exercise ordinary care in the operation of said automobile, plaintiff received the injuries complained of, it is your duty to return a verdict in favor of the plaintiff." No reference is made in any of the four instructions mentioned to the issue of contributory negligence. Appellant contends that all of such instructions are prejudicially erroneous by reason of such omission. It may be conceded that, considering the instructions abstractly, they are incomplete and inaccurate, but, under the circumstances of this case, later to be considered, they are not deemed prejudicial. Two subsequent instructions, given at the defendant's request, are as follows:
"If you find from the evidence that plaintiff was guilty of any negligence which proximately contributed to his alleged injury, or was guilty of any lack of ordinary care, whether by doing an act or by omitting to do what a person of ordinary care and prudence would have done under the same or similar circumstances, and such lack of ordinary care, act or omission, if any such there was, proximately contributed in any degree to the accident, and without which the accident would not have occurred, then you cannot go further and apportion the negligence, if any, between the parties, but in such event plaintiff was guilty of contributory negligence which defeats his recovery and your verdict must be in favor of defendant and against plaintiff."
"I further instruct you that a passenger in an automobile operated by another not for hire is required to use ordinary care for his own safety. If he is aware that the operator is carelessly operating the automobile, or is carelessly rushing into danger, it is incumbent upon him to take such steps as an ordinarily prudent person would take under the same circumstances for his own safety.
"I therefore instruct you that if you find from the evidence that said plaintiff, while a passenger in the automobile in which he was injured, by the exercise of ordinary care could have avoided the injuries which he received, and *Page 88
that such failure of plaintiff to exercise ordinary care proximately contributed to his injuries then your verdict should be for the defendant."
Since the evidence shows that the defendant was guilty of negligence as a matter of law, the only issue in the case, other than as to the amount of damages, was the alleged contributory negligence of the plaintiff. During the cross-examination of the plaintiff he repeatedly stated that he made no protest or suggestion to the defendant in relation to the speed of the automobile. Thereafter counsel for the plaintiff, misconceiving the effect of the decision of this court in Brown v. Davis,84 Cal.App. 180 [257 P. 877], moved the court, in the presence of the jury, to strike out all such testimony. The court granted the motion, saying in effect that the plaintiff's conduct, or omissions, did not constitute contributory negligence. Thereafter, counsel for the plaintiff, thinking that possibly he had led the court into error, moved the court to change the ruling striking out the aforesaid evidence, and the court granted the motion, saying:
"The motion to withdraw the objection to the questions as propounded and also the motion to strike out the answers of the plaintiff, and the motion to withdraw the objection to said answers will be granted and the objection will be overruled and the answers will stand and the court will instruct the jury that they are to disregard the remarks of the court in regard to whether or not such acts proximately contributed to the injury of the plaintiff, and that it will be their duty under the instructions of the court and the law and the evidence as offered to determine whether such acts on the part of the plaintiff proximately contributed to his injury and not to consider the remarks of the court in determining that question as to whether or not such acts were contributory negligence."
After all the things mentioned had occurred, and after the court had given the instructions on contributory negligence quoted herein, it seems impossible that the jurors could have been misled by the omission of any reference to the issue of contributory negligence in the first four instructions referred to herein. Presuming that they were persons of ordinary intelligence, they must have understood that *Page 89
any contributory negligence on the part of the plaintiff was sufficient to bar a recovery. It is by no means certain that jurors would understand such instructions, standing alone, to exclude the consideration of contributory negligence. It has been held that the use of the words "the proximate cause" of negligence "necessarily implies that it is the only proximate cause." (Straten v. Spencer, 52 Cal.App. 98, 106 [197 P. 540, 543]. See, also, Douglas v. Southern Pac. Co., 203 Cal. 390, 393 [264 P. 237], and Saltzen v. Associated Oil Co.,198 Cal. 157, 161 [244 P. 338].) If the word "proximate," as used in the instructions under consideration, had been preceded by the word "only" or "sole," there would have been no error in the omission of any reference to contributory negligence. What is said herein is not intended as an approval of the form of those instructions, but only as reasons for holding that, under the particular facts of this case, they are not prejudicially erroneous.
[4] Appellant complains of the court's refusal to give other requested instructions on the subject of contributory negligence, but the instructions on that subject herein set forth clearly cover the questions of law involved and, from what has already been said, it appears that the jurors must have fully understood their duty in that connection.
[5] Appellant contends that section 141 3/4 of the California Vehicle Act (Stats. 1929, p. 1580), providing "in substance that no guest in a vehicle upon a public highway has a right of recovery against the driver for injuries, sustained, except through intoxication, willful misconduct or gross negligence of the driver, . . . applies to the instant case and that any previous right of action of plaintiff fell with the enactment of this section." The appeal from the judgment herein was pending in this court at the time section 141 3/4 became effective. InKrause v. Rarity,* (Cal.App.) 283 P. 886, a case involving a similar situation, it was held that "section 141 3/4 of the California Vehicle Act is not retroactive and has no bearing whatsoever upon the case at bar." This holding was expressly approved by the *Page 90
Supreme Court in Smellie v. Southern Pac. Co.,** (Cal.) 276 P. 338, decided April 1, 1930.
The judgment is affirmed.
Plummer, J., and Thompson (R.L.), J., concurred.
* REPORTER'S NOTE. — The Supreme Court granted a hearing in the case of Krause v. Rarity, on April 17, 1930. The opinion of the Supreme Court is reported in (Cal.) 285 P. 879.
** REPORTER'S NOTE. — The Supreme Court granted a rehearing in the case of Smellie v. Southern Pac. Co., on April 28, 1930.
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This appeal is from an order of the court below continuing the injunction in favor of the Reading Company, pending final hearing without entertaining any hearing whatsoever on continuance. The same constitutional *Page 117
objections were raised in this case as in No. 8, May Term, 1938, and the court suggested that the injunction be continued until the determination of the case entered to No. 8, May Term, 1938. Since it appears that the court below made the order to relieve the parties of the necessity of duplicating much of the argument and testimony presented in that case, and to relieve the court of the impossible task of hearing immediately twenty-two motions similar to those involved in the appeal mentioned, all predicated upon the same principles of law, there appears to be no error in the order. The court did not deny appellants the right to produce evidence against the continuance as was the case in Kittanning Brewing Co. v.American Natural Gas Co., 224 Pa. 129, and that right is preserved by the order made in No. 8, May Term, 1938.
Remanded with a procedendo.
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358 So. 2d 1002 (1978)
Lena Vallot CASTILLE, Plaintiff and Appellee,
v.
Albert Richard CASTILLE, Defendant and Appellant.
No. 6447.
Court of Appeal of Louisiana, Third Circuit.
May 24, 1978.
Michael Harson, Lafayette, for defendant and appellant.
Dennis J. Vidrine, Lafayette, for plaintiff and appellee.
Before CULPEPPER, DOMENGEAUX and WATSON, JJ.
CULPEPPER, Judge.
The defendant husband appeals from a judgment awarding alimony pendente lite in the sum of $200 per month to the plaintiff wife. The plaintiff wife answered the appeal seeking an increase to $600 per month.
As to the constitutional issue, our Supreme Court recently considered the constitutionality of LSA-C.C. Article 148 in Williams v. Williams, 331 So. 2d 438 (La. 1976). In light of that decision, we find no merit to the appellant's contention that Civil Code Article 148 deprives him of equal protection or due process of law under La. Const.1974, Article 1, Sections 2 or 3.
Appellant also contends that he is entitled to a set-off or credit for $26,000 of community funds held by the wife. He bases his claim on the decision in Nelson v. Nelson, 311 So. 2d 268 (La.App. 1st Cir. 1974), amended on rehearing at 318 So. 2d 68 (La.App. 1st Cir. 1975). We find the facts of that case distinguishable from the case now before us. In Nelson the wife withdrew all of the monies in each community bank account and then purchased cashier's checks. She did this without her husband's knowledge and deposited the money in accounts of others. She had complete control over these funds. In the present case, the record reflects that Mrs. Castille took half the money in each account held by herself and Mr. Castille. We are not sure if this was done with appellant's consent, or even when this transfer occurred.
In a similar case, Hartley v. Hartley, 349 So. 2d 1258 (La.1977), our Supreme Court questioned the results in the Nelson case. Having distinguished Nelson on its facts, the Court went on to emphasize that for *1003 compensation to take place, each claim must be equally liquidated and demandable. In Hartley, the Court found the husband had, at best, a potential claim against his wife for community funds, and that compensation or set-off was, therefore, not available to him as a defense against the wife's claim for alimony.
We find Mr. Castille has failed to show that his wife owes him a debt equally liquidated and demandable. For that reason, no set-off is available to him in these proceedings.
We also find no abuse of discretion in the amount of $200 per month alimony pendente lite awarded by the trial court.
For the reasons assigned, the judgment appealed is affirmed. Costs of this appeal are assessed against defendant-appellant.
AFFIRMED.
DOMENGEAUX, Judge, dissenting in part.
I disagree with the portion of the majority opinion which affirms the amount of the alimony pendente lite awarded to the wife by the trial court. I feel that the amount should be reduced.
The amount awarded is approximately one-half of the husband's income. The parties were married for some 18 years. They were both married before. They are childless. The husband took early retirement and his only income is a retirement check in the amount of $423.00 per month, plus a little over $1.00 per month which he receives from his father's succession. The parties lived together for over one year after the husband took his retirement.
I fully recognize our limitations on review of amounts awarded in this type of case, and the much discretion which is accorded a trial judge in setting an amount. However, it appears to me that there is manifest error here. The wife is in a substantially better financial condition than the husband. When they became separated, the amount of cash owned by the community was divided, it appears that this division was accomplished by agreement. The divided funds are in their respective names and under their respective control. The husband has approximately $21,000.00 in Certificates of Deposit, plus some $8,000.00, some of which is in a checking account and the remainder in a Safety Deposit Box. The wife has approximately the same amount. Both of them have the greater part of the cash which they divided in interest bearing certificates. Additionally, the wife owns a home in which she is now living rent free, and also owns another piece of property which is not further described in the record. These immovables are her separate property. The husband owns nothing other than the cash.
A realistic appraisal of the respective maintenance needs of both parties show that they are about equal, except for one item: the husband must pay $100.00 for rent and the wife lives rent free in her own home. Considering all facets of this case, I feel that the alimony pendente lite should be reduced by $50.00 to compensate for the husband's rent.
I express no opinion concerning the legality and consequences of the voluntary division of the community funds by the parties, but the fact remains, obviously with the husband's condonance, that the wife has for her own use the substantial amount of cash referred to herein, which under usual circumstances would not be in her possession and control.
It appears to me that the wife is benefited in alimony pendente lite to a greater extent than anticipated by C.C. Art. 148. I would reduce that award to $150.00 per month.
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I concur in the dissenting opinion of Mr. Justice Wolfe. *Page 436
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In April, 1935, Lou Ethel Sands, wife of the plaintiff in error, died at Victoria Hospital in Dade County, Florida tier death is alleged to have been caused by an overdose of paraldehyde, a narcotic, administered for the purpose of producing "twilight sleep." Miss Mary E. Parrish was the owner and operator of Victoria Hospital and defendant in error was the physician attending Mrs. Sands at the time of her death. He prescribed the paraldehyde which was given by a nurse employed at the hospital.
In August, 1935, plaintiff in error instituted this action against defendant in error for the wrongful death of his wife. Seven pleas were proffered to the declaration but in view of the issue made, the fifth plea is all that we are required to consider. The fifth plea interposed as a defense a release executed under seal by plaintiff in error to Mary *Page 20
E. Parrish. It, in terms, released her from every claim or demand he may have arising from the death of his wife. The second and fourth pleas were stricken. There was a replication to the fifth, sixth, and seventh pleas, said replication charging defendant with being solely responsible for the death of Lou Ethel Sands. A demurrer to said replication was sustained, the plaintiff withdrew his joinder of issue, declined to plead further, final judgment was entered in favor of the defendant, and plaintiff sued out writ of error.
The parties are not agreed as to the question that is brought up for determination but they do agree that any and all questions raised turn on the interpretation of the release executed by the plaintiff in error to Mary E. Parrish which was detailed in the fifth plea.
Said release was executed by the plaintiff in error exclusively to Mary E. Parrish for a consideration of $1,900 and while somewhat lengthy, the pertinent part is as follows:
"This release covers all claims for loss of services, loss of consortium, hospital, doctor, nursing and medical bills, mental pain and suffering, and all other claims of every kind or character accruing to the undersigned by reason of the death of his said wife while a patient in the hospital, which said death is alleged to have been occasioned by reason of an overdose of paraldehyde."
Plaintiff in error now contends that Mary E. Parrish who administered the paraldehyde to his wife through the nurse, was not the real tort feasor, that the defendant in error Was the real tort feasor, that his negligent act in prescribing an overdose of paraldehyde occasioned the death of plaintiff's wife and being so, his (plaintiff's) release of Mary E. Parrish does not release defendant in error. In other words, *Page 21
the facts in this case, he contends, do not support a joint tort feasor relationship.
The law is settled in this country that where more than one person combine to commit a wrong, all are joint tort feasors and each is responsible for the acts of the other. If the tort is single, there can be but one restitution and the release of one releases all. On the other hand, if separate and independent acts of negligence committed by different persons merge in a single tort, each tort feasor is responsible! for the injury. In such cases, the injured party may elect to proceed against any or all the joint tort feasors, the courts will not attempt to apportion the damages. Cooley on Torts (3rd Edition), page 224. If, however, the person injured looks to one of the joint tort feasors and accepts from him a benefit in satisfaction and release, he can go no further. Having been recompensed by one responsible for the tort and having released him, all others who were jointly or jointly and severally liable are released. He cannot have a second satisfaction. Ashcroft v. Knoblock, 146 Ind. 169, 45 N.E. 69.
Defendant in error relies on the theory that if he and Mary E. Parrish, who administered the paraldehyde by her nurse, were joint tort feasors as alleged, that plaintiff in error having executed a release under seal to the latter, is now estopped to assert any claim against the other joint tort feasor. To support this view, he relies on Roper v. Florida Public Utilities Co., 131 Fla. 709, 179 So. 904; Feinstone v. Allison Hospital, Inc., 106 Fla. 302, 1413 So. 251; Muse v. DeVito,243 Mass. 384, 137 N.E. 730; Hubbard v. St. Louis M. R. Co.,173 Mo. 249, 72 S.W. 1073; Cleveland, Cincinnati, Chicago St. Louis Ry. Co. v. Hilligross, 171 Ind. 417, 86 N.E. 485; and like cases.
The question of when two or more persons responsible *Page 22
for the same act are joint tort feasors is one of fact that will be determined by the circumstances of the particular case. If the facts show, as contended by plaintiff in error, that there was not a joint tort feasor relationship between Mary E. Parrish and defendant in error and a release is executed to the former, such a release will not operate to release the latter.
Joint tort feasors are those who have a common part in contributing to a wrong. To make them liable jointly, in order that the release of one releases all, there must be community in the wrong act though such community may not be equal in degree. It is sufficient if the wrong be the product of the joint act but whether committed in concert or in severalty is not material. Concurring negligence must produce the wrong.
The theory upon which the release was executed to Mary E. Parrish was that a nurse employed by her "erroneously and negligently administered the prescription of this defendant and administered unto plaintiff's decedent wife four ounces of paraldehyde instead of four drams as prescribed, four drams being the usual and normal dose, and that as a result of over-dose so given and administered by the said nurse, as an employee of the proprietor of Victoria Hospital, the said Lou Ethel Sands died."
In his second amended declaration (the one on which he seeks recovery here) plaintiff in error charges that defendant in error "did wrongfully, carelessly, negligently and without due regard to her well being and safety, prescribe and cause to be administered to her, the same Lou Ethel Sands, four drams of paraldehyde, which the defendant then and there knew, or by the exercise of reasonable care and diligence, ought to have known, was a new and dangerous drug, that said defendant well knew, or by the exercise of *Page 23
reasonable care and diligence, ought to have known, that the giving of such a dose of paraldehyde to the said Lou Ethel Sands in her then grave and serious condition was unwise, unwarranted, improper, dangerous, and likely to result in the death of, or serious injury to, the said Lou Ethel Sands."
These two theories are so inconsistent that there cannot be a true basis for recovery on both of them. If it is true that the nurse misinterpreted the prescription and gave four ounces when she should have given four drams of paraldehyde, being the "usual and normal dose" and this resulted in death, then the defendant in error had no part in the wrongful death and cannot be charged with it.
Whether Mary E. Parrish and defendant in error are joint or several tort feasors, the law will not permit the plaintiff in error to treat them as several for the purpose of a release to one, such as was secured here, and then treat them as joint tort feasors for the purpose of an action at law against the other to recover for the same wrong. They will not be adjudicated to have committed the wrongful death by inconsistent means.
If negligence was responsible for the death of Lou Ethel Sands, it was produced by the giving of four ounces instead of four drams of paraldehyde as stated in the release or it was caused by an overdose of paraldehyde as contended in the declaration. No other conclusion can be drawn from the pleadings. Any cause of action based on the former means vanished when the release was executed.
For the reasons so stated, the judgment below is free from error and is affirmed.
Affirmed.
TERRELL, C. J., and WHITFIELD, BUFORD and THOMAS, J. J., concur.
BROWN and CHAPMAN, J. J., concur in conclusion. *Page 24
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01-03-2023
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07-05-2016
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https://www.courtlistener.com/api/rest/v3/opinions/3844839/
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Argued December 4, 1924.
The judges who heard this case are equally divided in opinion on the question as to whether or not the votes in the ballot box of St. Michael's Election District could legally be counted by the board computing the returns; when these ballots are considered and the returns changed according to the recount, Bailey is entitled to the certificate of election, but when not, Walters is entitled to receive it. This court being divided on the question of the legal right to count the votes involved, it follows that the order appealed from must stand as made and the certificate issue to Anderson H. Walters; and it is so ordered.
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01-03-2023
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07-06-2016
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https://www.courtlistener.com/api/rest/v3/opinions/4523333/
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Slip Op. 20–
UNITED STATES COURT OF INTERNATIONAL TRADE
__________________________________________
:
BIO-LAB, INC., CLEARON CORP. and :
OCCIDENTAL CHEMICAL CORP., :
:
Plaintiffs, :
: Before: Richard K. Eaton, Judge
v. :
: Court No. 18-00155
UNITED STATES, :
:
Defendant, :
:
and :
:
JUANCHENG KANGTAI CHEMICAL CO., LTD. :
and HEZE HUAYI CHEMICAL CO., LTD., :
:
Defendant-Intervenors. :
__________________________________________:
OPINION
[United States Department of Commerce’s Final Results are sustained.]
Dated$SULO
James R. Cannon, Jr., Cassidy Levy Kent (USA) LLP, of Washington, DC, argued for
Plaintiffs. With him on the brief was Ulrika K. Swanson.
Sonia M. Orfield, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington, DC, argued for Defendant. With her on the brief were
Joseph H. Hunt, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia
M. McCarthy, Assistant Director. Of counsel on the brief was Catherine Miller, Attorney, Office
of the Chief Counsel for Import Administration, U.S. Department of Commerce, of Washington,
DC.
Gregory S. Menegaz, deKieffer & Horgan, PLLC, of Washington, DC, argued for
Defendant-Intervenors. With him on the brief were J. Kevin Horgan and Alexandra H. Salzman.
Court No. 18-00155 Page 2
Eaton, Judge: Bio-Lab, Inc., Clearon Corp., and Occidental Chemical Corp. (“Plaintiffs”)
are U.S. domestic producers of chlorinated isocyanurates1 and the petitioners in this proceeding.
They challenge the United States Department of Commerce’s (“Commerce” or the “Department”)
final results published in Chlorinated Isocyanurates From the People’s Republic of China, 83 Fed.
Reg. 26,954 (Dep’t Commerce June 11, 2018) (“Final Results”), and the accompanying Issues and
Decision Mem. (June 5, 2018), P.R. 72 (“Final IDM”).
In the Final Results, Commerce determined that Defendant-Intervenors and mandatory
respondents Juancheng Kangtai Chemical Co., Ltd. (“Kangtai”) and Heze Huayi Chemical Co.,
Ltd. (“Heze”), Chinese producers and exporters of the chemicals, received countervailable
subsidies during the period of review, including through a loan program called the Export Buyer’s
Credit Program.2 See Final IDM at 1. It made this determination on the basis of adverse inferences,
having found that the use of adverse facts available (“AFA”)3 was warranted because the
1
Chlorinated isocyanurates, the subject chemicals, are “derivatives of cyanuric acid,
described as chlorinated s-triazine triones” that are used for, among other things, water treatment.
See Final IDM at 2; Chlorinated Isocyanurates from the People’s Rep. of China, 79 Fed. Reg.
67,424 (Dep’t Commerce Nov. 13, 2014) (countervailing duty order).
2
The Export Buyer’s Credit Program provides credit at preferential rates to foreign
purchasers of goods exported by Chinese companies in order to promote exports. See Clearon
Corp. v. United States, 43 CIT __, 359 F. Supp. 3d 1344, 1347 (2019). The program has been the
subject of much litigation before this Court. See, e.g., Yama Ribbons & Bows Co. v. United States,
No. 18-00054, 2019 WL 7373856, at *7 n.7 (CIT Dec. 30, 2019) (collecting cases).
3
Before Commerce may use AFA, it must make two separate findings. First,
Commerce shall use facts available “[i]f . . . necessary information is not available on the record,
or . . . an interested party or any other person . . . fails to provide . . . information [that has been
requested by Commerce] . . . in the form and manner requested,” or “significantly impedes” a
proceeding. 19 U.S.C. § 1677e(a)(1)-(2)(B), (C). Second, if Commerce determines that the use of
facts available is warranted, it must make the requisite additional finding that “an interested party
has failed to cooperate by not acting to the best of its ability to comply with a request for
information” before it may use an adverse inference “in selecting from among the facts otherwise
available.” Id. § 1677e(b)(1).
Court No. 18-00155 Page 3
Government of China (1) failed to provide necessary information about the operation of the Export
Buyer’s Credit Program, and (2) failed to act to the best of its ability to cooperate with Commerce’s
requests for information about the program.4 See 19 U.S.C. § 1677e(a), (b); Final IDM at 5-6. To
determine an AFA rate for the Export Buyer’s Credit Program, Commerce used a hierarchy it
developed for administrative reviews. See 19 U.S.C. § 1677e(d).5 Applying step two of the
hierarchy, the Department selected the rate of 0.87 percent ad valorem as a component of the final
subsidy rate calculated for Kangtai and Heze. See Final IDM at 12. This rate had previously been
determined in an earlier segment of the same proceeding for a Chinese government loan program
called the Export Seller’s Credit Program. Commerce found the Export Seller’s Credit Program to
be “similar” to the Export Buyer’s Credit Program because each conferred a similar benefit: access
to government-subsidized loans. See Final IDM at 12; 19 U.S.C. § 1677e(d)(1)(A)(i) (emphasis
added) (permitting Commerce to “use a countervailable subsidy rate applied for the same or
similar program in a countervailing duty proceeding involving the same country”).
Quite naturally, Plaintiffs do not question Commerce’s finding that the use of AFA was
warranted. Nor do Plaintiffs dispute the lawfulness of the hierarchy that Commerce used to select
an AFA rate for the Export Buyer’s Credit Program. Rather, they argue that the hierarchy, as
4
It is worth noting that, while the Department found that the respondents benefitted
from the Export Buyer’s Credit Program, based on AFA, the only evidence on the record regarding
use is that the respondents’ U.S. customers did not use the program. See Kangtai’s Sec. III Quest.
Resp. (Apr. 12, 2017), Ex. 15, C.R. 15; Heze’s Sec. III Quest. Resp. (Apr. 12, 2017), Ex. 12, C.R.
7.
5
In pertinent part, this subsection provides that if Commerce “uses an inference that
is adverse to the interests of a party under [19 U.S.C. § 1677e(b)(1)(A)] in selecting among the
facts otherwise available,” Commerce “may . . . in the case of a countervailing duty proceeding . . .
(i) use a countervailable subsidy rate applied for the same or similar program in a countervailing
duty proceeding involving the same country; or (ii) if there is no same or similar program, use a
countervailable subsidy rate for a subsidy program from a proceeding that [Commerce] considers
reasonable to use.” 19 U.S.C. § 1677e(d)(1).
Court No. 18-00155 Page 4
applied here, resulted in a rate for the program that is “simply too low to induce” the Government
of China to cooperate with Commerce’s requests for information in the future. See Pls.’ Reply Br.
Supp. Mot. J. Admin. R., ECF No. 37, 6; Pls.’ Mem. Supp. Mot. J. Admin. R., ECF No. 26-1
(“Pls.’ Br.”) 3. Thus, for Plaintiffs, the rate fails to satisfy the purpose of the AFA statute and,
therefore, is contrary to law. See Pls.’ Br. 3; 19 U.S.C. § 1677e(b). In addition, Plaintiffs claim that
substantial record evidence does not support the finding that the Export Buyer’s Credit Program
and the Export Seller’s Credit Program are “similar.” See Pls.’ Br. 3. As a result, they ask the court
to “remand [this case] to [Commerce] with instructions to reconsider [these] issues and address
specifically the rationale for relying on a 0.87 percent subsidy rate rather than a higher rate and the
reasons for finding that Export Buyer’s Credits and Export Seller’s Credits are ‘similar’ for
purpose of applying adverse inferences pursuant to the statute.” Pls.’ Br. 20.
For their part, Defendant the United States (“Defendant”), on behalf of Commerce, and
Defendant-Intervenors Kangtai and Heze ask the court to sustain the Final Results. See Def.’s
Resp. Pls.’ Mot. J. Agency R., ECF No. 34 (“Def.’s Br.”); see also Def.-Ints.’ Resp., ECF No. 33.
Jurisdiction is found under 28 U.S.C. § 1581(c) (2012). Because Commerce’s selection of
0.87 percent as the AFA rate for the Export Buyer’s Credit Program is supported by substantial
evidence and otherwise in accordance with law, the Final Results are sustained.
BACKGROUND
I. The Administrative Review
In January 2017, at the request of Plaintiffs and Defendant-Intervenors, the Department
commenced the second administrative review of the countervailing duty order on chlorinated
isocyanurates from China. See Initiation of Antidumping and Countervailing Duty Admin.
Court No. 18-00155 Page 5
Reviews, 82 Fed. Reg. 4294 (Dep’t Commerce Jan. 13, 2017); see also Chlorinated Isocyanurates
From the People’s Rep. of China, 79 Fed. Reg. 67,424 (Dep’t Commerce Nov. 13, 2014)
(countervailing duty order). The period of review was January 1, 2015, through December 31,
2015. See Final IDM at 1. Three Chinese producers and exporters of the subject chemicals were
selected as mandatory respondents, including Kangtai and Heze.6
Between February and September 2017, Commerce sent questionnaires to the Government
of China, as well as to Kangtai and Heze. The Department asked the Government of China to
provide information about, among other things, the operation of the Export Buyer’s Credit
Program—a government loan program administered by the state-owned China Export Import
Bank. From Kangtai and Heze, the Department sought information about their U.S. customers’
use of the program during the period of review. See Countervailing Duty Quest. (Feb. 27, 2017),
P.R. 11.
Between April and October 2017, Commerce received timely responses to its
questionnaires. Kangtai and Heze provided the information that Commerce asked for, including
evidence that their U.S. customers did not obtain financing through the Export Buyer’s Credit
Program. See Kangtai’s Sec. III Quest. Resp. (Apr. 12, 2017), Ex. 15, C.R. 15; Heze’s Sec. III
Quest. Resp. (Apr. 12, 2017), Ex. 12, C.R. 7. The Government of China, however, did not.
Specifically, the Government of China responded that some of the information that the Department
sought about the operation of the Export Buyer’s Credit Program was “not applicable,” because
the mandatory respondents’ U.S. customers did not use the program. See China’s Initial CVD
Quest. Resp. (Apr. 12, 2017), P.R. 21-24. In addition, China asserted that it was “unable” to
provide the requested information, not because it did not have it, but because, in its view, the
6
The third company, Hebei Jiheng Chemical Co. Ltd., is not a party to this action.
Court No. 18-00155 Page 6
information was “not necessary” to Commerce’s determination. See China’s Second Suppl. CVD
Quest. Resp. (Oct. 2, 2017), P.R. 45.
II. Preliminary Results
On December 4, 2017, the preliminary results of the administrative review were published.
See Chlorinated Isocyanurates From the People’s Rep. of China, 82 Fed. Reg. 57,209 (Dep’t
Commerce Dec. 4, 2017) (“Preliminary Results”), and accompanying Preliminary Decision Mem.
(Nov. 27, 2017), P.R. 49 (“Prelim. Dec. Mem.”). Commerce preliminarily determined that the
Government of China failed to cooperate with its requests for information. In particular,
Commerce found that China’s questionnaire responses failed to provide necessary information
regarding, inter alia: (1) whether the China Export Import Bank uses third-party banks to disburse
or settle Export Buyer’s Credits, (2) the interest rates it used during the period of review, and
(3) whether, after the program was amended in 2013, the China Export Import Bank limited the
provision of Export Buyer’s Credits to business contracts exceeding $2 million. See Prelim. Dec.
Mem. at 12. Finding that it could not fully analyze the operation of the program without this
information, the Department concluded that necessary information was missing from the record,
and that the use of facts available was warranted. See 19 U.S.C. § 1677e(a).
Commerce also found that the Government of China had failed to act to the best of its
ability to cooperate with its information requests, and used the adverse inference that, during the
period of review, Kangtai and Heze received a countervailable benefit under the Export Buyer’s
Credit Program. See Prelim. Dec. Mem. at 12; 19 U.S.C. § 1677e(b).
Court No. 18-00155 Page 7
Having found that Kangtai and Heze used and benefitted7 from the Export Buyer’s Credit
Program, Commerce determined an AFA rate for the program using a hierarchical approach. See
19 U.S.C. § 1677e(d); Final IDM at 5. The selected rate—0.87 percent—was included in
Commerce’s calculation of preliminary individual countervailable subsidy rates for Kangtai and
Heze. See Preliminary Results, 82 Fed. Reg. at 57,210.
III. Final Results
On June 5, 2018, Commerce issued its Final IDM and found, as it had in the Preliminary
Results, that Kangtai and Heze received countervailable subsidies at 0.87 percent ad valorem under
the Export Buyer’s Credit Program.8 See Final IDM at 11 (“As AFA, we determine that [the Export
Buyer’s Credit Program] provides a financial contribution, is specific, and provides a benefit to
the company respondents within the meaning of [the statute].”). Kangtai’s and Heze’s final net
subsidy rates, inclusive of the 0.87 percent rate, were 1.53 percent and 2.84 percent, respectively.
See Final Results, 83 Fed. Reg. at 26,954. Dissatisfied with these final rates as too low to induce
the Government of China to cooperate with Commerce’s requests for information, and questioning
whether the Export Buyer’s Credit Program and the Export Seller’s Program were “similar,”
Plaintiffs commenced this action.
7
Under Commerce’s regulations “[i]n the case of a loan, a benefit exists to the extent
that the amount a firm pays on the government-provided loan is less than the amount the firm
would pay on a comparable commercial loan(s) that the firm could actually obtain on the market.
19 C.F.R. § 351.505(a)(1) (2017).
8
Commerce calculates “an ad valorem subsidy rate by dividing the amount of the
benefit allocated to the period of investigation . . . by the sales value during the same period of the
product or products to which [it] attributes the subsidy . . .” 19 C.F.R. § 351.525(a).
Court No. 18-00155 Page 8
STANDARD OF REVIEW
The court will sustain a determination by Commerce unless it is “unsupported by
substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C.
§ 1516a(b)(1)(B)(i).
LEGAL FRAMEWORK
I. Commerce’s Authority to Impose Countervailing Duties
If Commerce determines that a foreign government or public entity “is providing, directly
or indirectly, a countervailable subsidy with respect to the manufacture, production, or export of a
class or kind of merchandise imported, or sold (or likely to be sold) for importation, into the United
States,” a duty will be imposed in an amount equal to the net countervailable subsidy. 19 U.S.C.
§ 1671(a). This “remedial measure . . . provides relief to domestic manufacturers by imposing
duties upon imports of comparable foreign products that have the benefit of a subsidy from the
foreign government.” Fine Furniture (Shanghai) Ltd. v. United States, 748 F.3d 1365, 1368 (Fed.
Cir. 2014) (citation omitted). The countervailing duty statute applies equally when the imported
merchandise is from a nonmarket economy country.9 See 19 U.S.C. § 1671(f)(1); see also TMK
IPSCO v. United States, 41 CIT __, __, 222 F. Supp. 3d 1306, 1313 (2017).
In its countervailability determinations, Commerce must assess the nature of a foreign
government’s alleged financial contribution. See 19 U.S.C. § 1677(5). Thus, “Commerce often
requires information from the foreign government allegedly providing the subsidy.” Fine
9
A “nonmarket economy country” is “any foreign country that [Commerce]
determines does not operate on market principles of cost or pricing structures, so that sales of
merchandise in such country do not reflect the fair value of the merchandise.” 19 U.S.C.
§ 1677(18)(A). China is a nonmarket economy country. See Prelim. Dec. Mem. 3.
Court No. 18-00155 Page 9
Furniture, 748 F.3d at 1369-70. This is because “normally, [foreign] governments are in the best
position to provide information regarding the administration of their alleged subsidy programs,
including eligible recipients.” Id. at 1370 (citation omitted). “Additionally, Commerce sometimes
requires information from a foreign government to determine whether a particular respondent
received a benefit from an alleged subsidy.” Id.
II. Commerce’s Authority to Use Adverse Inferences
Because Commerce lacks the power to subpoena documents and information, the law
authorizes it to use an adverse inference to induce cooperation with its requests for information.
See 19 U.S.C. § 1677e; see also BMW of N. Am. LLC v. United States, 926 F.3d 1291, 1295 (Fed.
Cir. 2019) (quoting Nan Ya Plastics Corp. v. United States, 810 F.3d 1333, 1337, 1338 (Fed. Cir.
2016)) (“During an administrative review, the ‘burden of creating an adequate record lies with
interested parties and not with Commerce. . . . This is because ‘the International Trade
Administration, the relevant agency within Commerce, has no subpoena power.’”).
If adequate information is not forthcoming, Commerce may, under the right circumstances,
apply an adverse inference. First, there must be a gap in the factual record. See 19 U.S.C.
§ 1677e(a). Thus, if a party to a proceeding fails to provide, in a timely fashion, information that
Commerce has asked for, then “Commerce shall fill in the gaps with ‘facts otherwise available.’”
Nippon Steel Corp. v. United States, 337 F.3d 1373, 1381 (Fed. Cir. 2003) (quoting 19 U.S.C.
§ 1677e(a)).
Second, there must be a finding that an interested party has failed to cooperate to “the best
of its ability” with Commerce’s request for information. See 19 U.S.C. § 1677e(b). “[I]f Commerce
determines that an interested party has ‘failed to cooperate by not acting to the best of its ability to
Court No. 18-00155 Page 10
comply’ with a request for information, it may use an adverse inference in selecting a rate from
these facts,” pursuant to 19 U.S.C. § 1677e(b).10 BMW, 926 F.3d at 1295 (quoting Nippon Steel,
337 F.3d at 1381).
The purpose of AFA is to provide respondents with an incentive to cooperate in
Commerce’s investigations and reviews. See F.lli De Cecco Di Filippo Fara S. Martino S.p.A. v.
United States, 216 F.3d 1027, 1032 (Fed. Cir. 2000) (“De Cecco”). While Commerce may use
adverse inferences to encourage future cooperation, it may not use AFA to punish respondents. Id.
(citation omitted) (“[T]he purpose of section 1677e(b) is to provide respondents with an incentive
to cooperate, not to impose punitive, aberrational, or uncorroborated margins.”).
A foreign government may be found to be an uncooperative party. Thus, AFA may be used
to induce, or encourage, a foreign government’s cooperation. See Fine Furniture, 748 F.3d at 1371
(“[O]n its face, the statute authorizes Commerce to apply adverse inferences when an interested
party, including a foreign government, fails to provide requested information.”). That is, where a
foreign government is uncooperative, respondent companies from that country may receive an
AFA rate, even if they themselves are cooperative. The rationale for permitting the application of
AFA to cooperative respondents is that “a remedy that collaterally reaches [a cooperative
respondent] has the potential to encourage the [foreign government] to cooperate so as not to hurt
its overall industry.” Id. at 1373. Though Commerce’s use of adverse inferences may adversely
impact a cooperating party, Commerce must take into consideration the respondent’s status as a
cooperating party when determining an AFA rate. Indeed, the cases indicate that, where a
nonmarket economy respondent is cooperative but the government of its country is not, the court
10
When using adverse inferences, Commerce may rely upon information derived
from the petition, a final determination, any previous review or determination, or any other
information placed on the record. See 19 U.S.C. § 1677e(b)(2)(A)-(D).
Court No. 18-00155 Page 11
should lean toward accuracy and away from deterrence. See Changzhou Trina Solar Energy Co.
v. United States, No. 17-00246, 2018 WL 6271653 (CIT Nov. 30, 2018) (“Changzhou I”) (citing
Mueller Comercial de Mexico, S. de R.L. De C.V. v. United States, 753 F.3d 1227, 1234 (Fed. Cir.
2014)).
III. Commerce’s Use of a Hierarchy to Determine an AFA Countervailable Subsidy Rate
The adverse inferences statute, § 1677e, was amended in 2015 by the Trade Preferences
Extension Act to add subsection (d). See Trade Preferences Extension Act of 2015 § 502, Pub. L.
No. 114-27, 129 Stat. 362 (June 29, 2015), codified in 19 U.S.C. § 1677e(d) (Supp. III 2015).
Subsection (d) addresses subsidy rates in AFA determinations. In pertinent part, this subsection
provides that if Commerce “uses an inference that is adverse to the interests of a party under [19
U.S.C. § 1677e(b)(1)(A)] in selecting among the facts otherwise available,” it “may . . . in the case
of a countervailing duty proceeding”:
(i) use a countervailable subsidy rate applied for the same or similar program in a
countervailing duty proceeding involving the same country; or
(ii) if there is no same or similar program, use a countervailable subsidy rate for a
subsidy program from a proceeding that [Commerce] considers reasonable to use.
19 U.S.C. § 1677e(d)(1)(A) (emphasis added). For administrative reviews, Commerce has
employed a four-step hierarchical method in an effort to satisfy the statute’s “same or similar
program” injunction:
The AFA hierarchy for reviews has four steps, applied in sequential order. The first
step is to apply the highest non-de minimis rate calculated for a cooperating
respondent for the identical program in any segment of the same proceeding. If
there is no identical program match within the proceeding, or if the rate is de
minimis, the second step is to apply the highest non-de minimis rate calculated for
a cooperating company for a similar program within any segment of the same
proceeding. If there is no non-de minimis rate calculated for a similar program
within [the] same proceeding, the third step is to apply the highest non-de minimis
Court No. 18-00155 Page 12
rate calculated for an identical or similar program in another countervailing duty
proceeding involving the same country. If no such rate exists under the first through
third steps, the fourth step is to apply the highest rate calculated for a cooperating
company for any program from the same country that the industry subject to the
investigation could have used.
Final IDM at 5.
This Court has reviewed with approval Commerce’s use of hierarchical methods to
determine AFA subsidy rates.11 See, e.g., Essar Steel Ltd. v. United States, 37 CIT __, __, 908 F.
Supp. 2d 1306, 1312-13 (2013), aff’d 753 F.3d 1368 (Fed. Cir. 2014); SolarWorld Americas, Inc.
v. United States, 41 CIT __, __, 229 F. Supp. 3d 1362, 1370 (2017) (upholding reasonableness of
the hierarchy, stating “Commerce is entitled to devise a methodology to apply to all cases and the
court cannot say that this methodology is unreasonable in general or as applied here.”); see also
Essar Steel Ltd. v. United States, 753 F.3d 1368, 1373-74 (Fed. Cir. 2014).
DISCUSSION
I. Commerce Did Not Err by Using the Hierarchy to Determine an AFA Rate for the
Export Buyer’s Credit Program
In the Final Results, Commerce determined that using facts available was warranted when
determining a subsidy rate for the Export Buyer’s Credit Program because the Government of
China failed to provide requested information about the operation of the program, and thus,
necessary information was missing from the record. See Final IDM at 5; 19 U.S.C. § 1677e(a).
Additionally, Commerce used an adverse inference because, it found, the Government of China
11
Commerce employs a different four-step hierarchy method to determine AFA rates
in countervailing duty investigations, which this Court has reviewed with approval. See
SolarWorld Americas, Inc. v. United States, 41 CIT __, __, 229 F. Supp. 3d 1362, 1370 (2017).
Court No. 18-00155 Page 13
had not “cooperate[d] to the best of its ability” to comply with the Department’s requests for
information. See Final IDM at 5; 19 U.S.C. § 1677e(b).
Having determined the use of AFA was warranted, Commerce then applied its hierarchy
to select an AFA rate:
Because we have not calculated a rate for an identical program in this proceeding,
we then determine, under step two of the hierarchy, if there is a calculated rate for
a similar/comparable program (based on the treatment of the benefit) in the same
proceeding, excluding de minimis rates. In the instant review, the [Government of
China] reported that the Export Buyer’s Credit Program provides loan support
through export buyer’s credits. Based on the description of the Export Buyer’s
Credit Program as provided by the [Government of China], we continue to find that
[the] Export Seller’s Credit Program and the Export Buyer’s Credit Program are
similar/comparable programs as both programs provide access to loans. When
Commerce selects a similar program, it looks for a program with the same type of
benefit. For example, it selects a loan program to establish the rate for another loan
program, or it selects a grant program to establish the rate for another grant
program. Consistent with this practice, upon examination of the available above de
minimis programs from the current review and the underlying investigation,
Commerce selected the Export Seller’s Credit Program because it confers the same
type of benefit as the Export Buyer’s Credit Program, as both programs are
subsidized loans from the China [Export Import] Bank.
Final IDM at 12-13 (emphasis added). Thus, Commerce applied “the 0.87 percent ad valorem
countervailable subsidy rate for the Export Seller’s Credit Program,” which had been previously
determined in an earlier segment of the proceeding, as the AFA rate for the Export Buyer’s Credit
Program. Final IDM at 13. Commerce has used this approach in other cases. See, e.g., Clearon
Corp. v. United States, 43 CIT __, 359 F. Supp. 3d 1344, 1362 (2019)12 (sustaining Commerce’s
selection of the 0.87 percent rate assigned to the Export Seller’s Credit Program during the
12
Plaintiffs here are also the plaintiffs in Clearon, where the Court remanded
Commerce’s final results of the first administrative review of the subject countervailing duty order.
As Plaintiffs acknowledge in their opening brief, the issues and arguments in the two cases overlap.
See Pls.’ Br. 1 n.1. Relevant to this case, the Clearon Court sustained the 0.87 percent AFA rate
as supported by substantial evidence based on the record there, and in doing so, rejected many of
the same arguments Plaintiffs make here. Clearon, 43 CIT at __, 359 F. Supp. 3d at 1360
(sustaining in part and remanding on grounds not relevant to this case).
Court No. 18-00155 Page 14
investigation); Changzhou I, 2018 WL 6271653, *5 (sustaining Commerce’s use of a sufficiently
similar program from an earlier administrative review).
Kangtai’s and Heze’s final net subsidy rates, inclusive of the 0.87 percent rate, were 1.53
percent and 2.84 percent, respectively. See Final Results, 83 Fed. Reg. at 26,954. Specifically,
Kangtai’s 1.53 percent final net subsidy rate reflects the sum of two countervailable programs:
(1) 0.87 percent ad valorem for the Export Buyer’s Credit Program; and (2) 0.66 percent ad
valorem for electricity provided at less than adequate remuneration. See Final IDM at 6. Heze’s
2.84 percent final net subsidy rate reflects the sum of three countervailable programs: (1) 0.87
percent ad valorem for the Export Buyer’s Credit Program; (2) 1.22 percent ad valorem for
electricity provided at less than adequate remuneration; and (3) 0.75 percent ad valorem for self-
reported grants. See Final IDM at 6.
The domestic producer Plaintiffs’ main argument is that Commerce’s “rigid application”
of its hierarchy, which resulted in the selection of the 0.87 percent rate, “was arbitrary and not in
accordance with law because it defeated the purpose of the statute”:
The purpose of the statute is to apply an “adverse” inference in order to deter
responding foreign producers and companies from withholding information or
failing to cooperate in Commerce proceedings. Here, Commerce applied a net
subsidy rate of only 0.87 percent to the Export Buyer’s Credit Program, despite that
Commerce had applied a rate of 10.54 percent to that program in prior cases and
despite that a 0.87 percent rate was manifestly inadequate to deter China from
refusing to supply needed information.
Pls.’ Br. 3. In other words, for Plaintiffs, if the 10.54 percent rate, that was selected for the program
in a different proceeding, failed to deter non-cooperation by the Government of China, a 0.87
percent rate was sure to fail in this proceeding. Although they do not argue for a specific rate,
apparently Plaintiffs seek a rate in excess of 10.54 percent since they note that that rate was not
sufficient to induce the Government of China to cooperate. See Pls.’ Br. 13.
Court No. 18-00155 Page 15
Plaintiffs acknowledge that “[i]nducement is not the only purpose of the statute,” and that
Commerce must balance the dual objectives of inducement and accuracy. Pls.’ Br. 12. They insist,
however, that here, Commerce has ignored the deterrence objective. See Pls.’ Br. 12 (“Commerce
must at least consider whether a particular AFA rate will be effective in encouraging
cooperation.”).
In response, Commerce urges the court to reject Plaintiffs’ argument that it should have
departed from its hierarchy:
In the instant review, Commerce properly applied its review hierarchy in selecting
an AFA rate. Making identical arguments as the plaintiffs in Clearon Corp., Bio-
Lab contends that the rate selected is not sufficiently adverse to “provide any
meaningful incentive to the Government of China.” . . . However, “neither the
statute nor the regulations dictate how Commerce is to determine the AFA
rate.” . . . Thus, Commerce has “great” discretion when applying an AFA
margin. . . . Here, the rate selected is not de minimis, and given that the program at
issue was found to have not been used in a prior segment, the selected rate is adverse
in terms of meeting the goals described above for selecting a rate in a review.
Def.’s Br. 11 (citations omitted). For the Department, “selecting a different rate from another
proceeding in this segment would be a change in practice . . ., which would upset the balance
between relevancy [i.e., accuracy] and inducement that Commerce seeks to achieve when it applies
its [countervailing duty] AFA hierarchy to non-cooperating respondents.” Final IDM at 13. Thus,
Commerce maintains that application of the hierarchy was in accordance with law, based on record
evidence, and fair because it recognized that the Defendant-Intervenors Kangtai and Heze had
cooperated in the review.
The court finds that Commerce did not err by using its hierarchy to determine an AFA rate
for the Export Buyer’s Credit Program in the Final Results. In Changzhou I, this Court rejected
arguments similar to those raised by Plaintiffs, on a similar factual record. Changzhou I is
instructive.
Court No. 18-00155 Page 16
At issue in Changzhou I were the final results of an administrative review of a
countervailing duty order on solar products. There, as here, Commerce found that the Government
of China had failed to cooperate to the best of its ability to provide necessary information about
the Export Buyer’s Credit Program. As a result, Commerce found that the use of AFA was
warranted. See 19 U.S.C. § 1677e(a), (b). It further found, based on AFA, that the cooperating
Chinese respondents had received a benefit under the program, notwithstanding their claims to the
contrary. Commerce, thus, applied its hierarchy and, under step two, selected an AFA rate for the
program of 0.58 percent—the rate that had been previously determined for another loan program
(the “Preferential Loans and Directed Credit” program) in the same proceeding. Changzhou I,
2018 WL 6271653, *4.
SolarWorld Americas, Inc., the U.S. petitioner, argued that while Commerce was correct
to find AFA warranted, its application of the hierarchy to determine the AFA rate for the program
was not in accordance with law because the resulting rate—0.58 percent—was too low to achieve
the statutory goal of deterrence:
[I]n using its established [hierarchy] methodology, Commerce arrived at an AFA
rate too low to induce compliance in future proceedings. . . . SolarWorld argues that
19 U.S.C. § 1677e requires Commerce to set a rate high enough to encourage a
party’s future compliance in administrative reviews. . . . SolarWorld details several
proceedings in which a higher rate has failed to result in the [Government of
China’s] future full compliance with Commerce’s reviews. . . . Based on this history
of [Government of China] noncompliance, SolarWorld argues that such a low rate
of 0.58 percent will not encourage compliance.
Id. (internal citations omitted). The Changzhou I Court rejected this argument. Central to its
reasoning was that the company that would receive the adverse rate was a cooperating respondent:
As the United States Court of Appeals for the Federal Circuit has stated “the
purpose of section 1677e(b) is to provide respondents with an incentive to
cooperate, not to impose punitive, aberrational, or uncorroborated margins.” . . .
What SolarWorld essentially argues is for Commerce to deviate from an established
Court No. 18-00155 Page 17
practice because the rate assessed was not high enough to be punitive. This
argument fails. . . .
[E]ven if Commerce, on remand, finds that the [Government of China] refused to
comply with Commerce’s requests such that a resort to AFA is warranted,
SolarWorld fails to appreciate that [mandatory respondent] Trina is a cooperating
respondent. When selecting a rate for a cooperating party, “the equities would
suggest greater emphasis on accuracy” over deterrence.
Id. at *4-5 (first quoting De Cecco, 216 F.3d at 1032; then quoting Mueller, 753 F.3d at 1234).
The Changzhou I Court relied on principles that are well-established in this Court and the
Federal Circuit, including that determining a rate that is relevant, i.e., accurate, is a primary
statutory objective:
[A]lthough encouraging compliance is a valid consideration in determining an AFA
rate, it is not, as SolarWorld argues “inconsistent with the statute” for Commerce
to weigh other factors, such as relevancy, which ultimately result in a presumably
low AFA rate. . . . As the court in Mueller stated, “the primary objective [is] the
calculation of an accurate rate.”
Id. at 5 (quoting Mueller, 753 F.3d at 1235); see also SolarWorld, 41 CIT at __, 229 F. Supp. 3d
at 1366 (citing De Cecco, 216 F.3d at 1032) (“An AFA rate selected by Commerce must reasonably
balance the objectives of inducing compliance and determining an accurate rate.”). The Federal
Circuit’s opinion in Mueller, cited in Changzhou I, outlined principles that are applicable here:
This Court’s decision in [De Cecco, 216 F.3d at 1032], required that, even for a
non-cooperating party, subsection [1677e](b) be applied to arrive at “a reasonably
accurate estimate of the respondent’s actual rate, albeit with some built-in increase
intended as a deterrent to noncompliance.” All the more so for a cooperating party,
for which the equities would suggest greater emphasis on accuracy in the overall
mix. Moreover, this Court’s decision in Changzhou made clear that, in the case of
a cooperating party, Commerce cannot confine itself to a deterrence rationale and
also must carry out a case-specific analysis of the applicability of deterrence and
similar policies. Changzhou Wujin Fine Chemical Factory Co., Ltd. v. U.S., 701
F.3d 1367, 1379 (Fed. Cir. 2012). And those principles were in no way questioned
in [Fine Furniture, 748 F.3d at 1370-71], which simply rejected a contention that a
countervailing duty rate for a cooperating importer could not be based on adverse
inferences drawn against a non-cooperating foreign country (about the country’s
subsidizing of an input into the importer’s product).
Court No. 18-00155 Page 18
Mueller, 753 F.3d at 1234 (emphasis added); see also Changzhou Wujin, 701 F.3d at 1378
(questioning the relevance of deterrence “where the ‘AFA rate’ only impacts cooperating
respondents” and noting that “applying an adverse rate to cooperating respondents undercuts [with
respect to respondents] the cooperation-promoting goal of the AFA statute”).
Finally, the Changzhou I Court found that the hierarchy was a reasonable way to effect the
AFA statute. See Changzhou I, 2018 WL 6271653, at *5; see also 19 U.S.C. § 1677e(d). The Court
observed that departing from the hierarchy because the resulting rate was perceived as “too low”
could itself be viewed as arbitrary:
[I]nsisting that Commerce deviate from this established practice because the rate is
not seen to be a sufficient deterrent or perhaps, in this circumstance, not sufficiently
punitive strikes the court as arbitrary. Commerce’s hierarchy establishes both some
consistency and predictability in Commerce’s determinations and also attempts to
guard against setting too low a rate by requiring the selected program to have a non-
de minimis rate. In this specific instance, Commerce applied the highest non-de
minimis rate for a similar program, further supporting its contention that Commerce
attempted to strike a balance between relevancy and inducement.
Changzhou I, 2018 WL 6271653, at *5. Ultimately, the Court “sustain[ed] Commerce’s use of its
established hierarchy in assessing” the 0.58 percent rate for the Export Buyer’s Credit Program in
that case. Id.
As in Changzhou I, Plaintiffs would elevate deterrence over accuracy and fairness even
though Kangtai and Heze were cooperating respondents. The cases, however, indicate that the
respondents’ status as cooperating respondents must be taken into account when determining an
AFA rate. See Clearon, 43 CIT at __, 359 F. Supp. 3d at 1362 (“[W]hether a rate is sufficient to
encourage cooperation in the future is based on Commerce’s consideration of the facts.”). Clearon
was a case that involved the same plaintiffs and a similar factual record. There too, Commerce
used the 0.87 percent rate for the Export Buyer’s Credit Program. The plaintiffs argued there, as
they do here, that if a 10.54 percent adverse subsidy rate, which was sustained by this Court in a
Court No. 18-00155 Page 19
separate case, had failed to deter non-cooperation by the Government of China, a 0.87 percent rate,
likewise, would probably fail to encourage compliance. The Court rejected the argument that 0.87
percent was “unreasonably low to deter future non-cooperation,” and considered the rate’s impact
on the accuracy of each cooperating respondent’s final net subsidy rate. Id., 43 CIT at __, 359 F.
Supp. 3d at 1361. For example, noting that Heze’s final net subsidy rate, inclusive of the 0.87
percent rate for the Export Buyer’s Credit Program, was 1.91 percent, the Clearon Court observed
that “even if the 0.87 percent rate might appear low in comparison to the 10.54 percent rate, its
inclusion in the calculation of Heze’s rate increased its rate by approximately 100 percent to 1.91
percent.” Id., 43 CIT at __, 359 F. Supp. 3d at 1362.
Although the final net subsidy rates at issue in Clearon and those at issue here are different,
the same reasoning applies—placing greater emphasis on accuracy over deterrence is not
unreasonable when dealing with cooperating respondents. See Changzhou I, 2018 WL 6271653,
at *5 (quoting Mueller, 753 F.3d at 1234) (“When selecting a rate for a cooperating party, ‘the
equities would suggest greater emphasis on accuracy’ over deterrence.”). Here, Kangtai’s and
Heze’s final net subsidy rates, inclusive of the 0.87 percent rate, were 1.53 percent for Kangtai and
2.84 percent for Heze. See Final Results, 83 Fed. Reg. at 26,954. Thus, the 0.87 percent AFA rate
for the Export Buyer’s Credit Program constitutes more than one-half of Kangtai’s 1.53 percent
rate, and approximately one-third of Heze’s 2.84 percent rate. These rates reasonably emphasize
accuracy over deterrence without undercutting the cooperation-promoting goal of the AFA statute.
See Changzhou Wujin, 701 F.3d at 1378. Moreover, if Plaintiffs’ argument that a rate of 10.54
percent was too low to result in cooperation were taken seriously, a rate even higher and farther
away from an accurately calculated rate would be required. In any event, Plaintiffs’ argument is
not particularly well developed. Although they argue for “a higher rate” for the Export Buyer’s
Court No. 18-00155 Page 20
Credit Program, they propose neither an alternative rate, nor an alternative method to determine
one.
Finally, the primary purpose of the AFA statute is not to punish companies, but rather to
calculate accurate rates. De Cecco, 216 F.3d at 1032; see also Mueller, 753 F.3d at 1235 (“[T]he
primary objective [is] the calculation of an accurate rate.”). So long as the AFA rate serves this
objective, it is normally found to be within Commerce’s sound judgment. See, e.g., Changzhou I,
2018 WL 6271653, at *5.
While Plaintiffs would prefer that Commerce depart from its hierarchy and select a higher
rate, it was not unreasonable for Commerce to decline to do so. This is especially true because the
situation that resulted in Commerce using AFA was created, not by the failure to cooperate by
respondents Kangtai or Heze, but that of the Government of China. This distinction matters—
Commerce must balance the policies of accuracy and deterrence, or risk potentially undercutting
“the cooperation-promoting goal of the AFA statute.” Changzhou Wujin, 701 F.3d at 1378; see
also Mueller, 753 F.3d at 1234 (citation omitted) (noting Commerce must consider, on a case-
specific basis, “the applicability of deterrence and similar policies”). In other words, the normal
purpose of AFA is to induce the respondents themselves to cooperate. Should the respondents find
that there is no benefit to their cooperation, they might well conclude that answering Commerce’s
questionnaires was not worth their while.
Accordingly, the court sustains Commerce’s use of its hierarchy in determining an AFA
rate for the Export Buyer’s Credit Program.
II. Commerce’s Selection of 0.87 Percent as the AFA Rate for the Export Buyer’s Credit
Program Is Supported by Substantial Evidence
Court No. 18-00155 Page 21
In the Final Results, Commerce selected an AFA rate for the Export Buyer’s Credit
Program using its four-step hierarchy. Under step two of the hierarchy, Commerce determined that
the Export Buyer’s Credit Program and the Export Seller’s Credit Program were similar because
both conferred a similar benefit—access to government-subsidized loans. Final IDM at 12-13
(“[U]pon examination of the available above de minimis programs from the current review and the
underlying investigation, Commerce selected the Export Seller’s Credit Program because it
confers the same type of benefit as the Export Buyer’s Credit Program, as both programs are
subsidized loans from the China [Export Import] Bank.”). Thus, Commerce used the 0.87 percent
ad valorem countervailable subsidy rate, which had previously been determined for the Export
Seller’s Credit Program in a prior segment of the proceeding, as the AFA rate for the Export
Buyer’s Credit Program. See Final IDM at 13.
Plaintiffs maintain that the 0.87 percent rate is not supported by substantial evidence
because the record does not support Commerce’s finding that the Export Buyer’s Credit Program
and the Export Seller’s Credit Program are “similar”:
Commerce did not explain its decision that the Export Buyer’s Credit was “similar”
to China’s Export Seller’s Credit and cited no record evidence to support that
decision. Fundamentally, a subsidy paid to buyers, unlike a subsidy to sellers,
directly reduces the cost to the buyer. The terms of the Buyer’s Credits limited the
loans to foreign importers and other foreign entities, and permit payment in U.S.
dollars. These terms contrast with the terms of the Seller’s Credits. Otherwise,
because the Government of China failed to provide information requested by
Commerce, there was no evidence with which to determine whether Export Buyer’s
and Export Seller’s Credits were similar in terms and conditions, amount of the
credits, interest rates, duration, or any other measurable criteria. As such, the
determination that these credits were similar was not based on substantial evidence.
Pls.’ Br. 3. Put another way, for Plaintiffs, “similarity” requires more than a finding that the two
programs are government-subsidized loan programs. They contend that because the terms and
Court No. 18-00155 Page 22
conditions of each program are different Commerce has not demonstrated that the programs are
similar. Pl.’s Br. 4.
Based on the record, the court finds that Commerce has supported with substantial
evidence, and adequately explained, its similarity finding. Here, Commerce found, using
information provided by the Government of China, that the Export Seller’s Credit Program
“confers the same type of benefit as the Export Buyer’s Credit Program, as both programs are
subsidized loans from the China [Export Import] Bank.” Final IDM at 12-13. There is no dispute
that the record shows that both programs provide loans at preferential rates from the Government
of China through the China Export Import Bank to support Chinese exports.
This Court has upheld Commerce’s finding that the Export Buyer’s Credit Program is
“similar” to other programs that confer subsidized loans. In Changzhou Trina Solar Energy Co. v.
United States, 42 CIT __, __, 352 F. Supp. 3d 1316, 1328 (2018) (“Changzhou II”), the Court
reviewed Commerce’s finding that the Export Buyer’s Credit Program and a preferential lending
program aimed at the renewable energy industry (the “Lending Program”) were similar because
both provided access to loans at preferential rates. Changzhou II, 42 CIT at __, 352 F. Supp. 3d at
1328 (noting that “Commerce predicated [its] finding of similarity on both the [Export Buyer’s
Credit Program’s] and the [Lending] Program’s distribution of loans.”). The Court reached its
decision even though the plaintiffs argued that the program at issue here, the Export Seller’s Credit
Program, was more similar to the Export Buyer’s Credit Program than the Lending Program. In
other words, the plaintiffs in Changzhou II argued that Commerce erred by failing to examine
whether the Export Seller’s Credit Program or the Lending Program was “more similar” to the
Export Buyer’s Credit Program. Relying on the plain language of the statute, the Court rejected
this argument: “Under Commerce’s established [hierarchy] methodology and consistent with the
Court No. 18-00155 Page 23
plain text of the statute, Commerce selects a similar program, not necessarily the most similar
program.” Changzhou II, 42 CIT at __, 352 F. Supp. 3d at 1328 (citing 19 U.S.C.
§ 1677e(d)(1)(A)(i)).
The Changzhou II holding applies equally here. To apply step two of its hierarchy,
Commerce must select a program that is similar to the one with respect to which information is
missing from the record. To make this selection, Commerce is not required to compare multiple
programs to determine which is the “most similar” to the program. Id., 42 CIT at __, 352 F. Supp.
3d at 1328-29. Selecting a program that is similar is enough to satisfy the statute.
The plaintiffs in Changzhou II also argued, as Plaintiffs do here, that Commerce had failed
to explain adequately its rationale underlying its similarity finding. As summarized by the Court,
Commerce stated how it arrived at its similarity finding:
After finding no program identical to the [Export Buyer’s Credit Program] in the
same administrative review, Commerce identified a similar program in the same
proceeding to use as a basis for calculating the rate for the [Export Buyer’s Credit
Program]. . . . . Commerce calculated a rate of 5.46 percent ad valorem, for the
[program] by utilizing the rate “calculated for company respondent Lightway Green
New Energy Co., Ltd.’s usage of the [Lending Program] in the 2012 administrative
review of this proceeding.” . . . . Commerce explained that the [Lending Program]
. . . was similar because both it and the Export Buyer’s Credit Program provided
access to loans.
Changzhou II, 42 CIT at __, 352 F. Supp. 3d at 1327 (record citations omitted). The Court found
that Commerce was not required to provide a more detailed explanation of its similarity finding,
and that substantial evidence supported its decision: “Although a more detailed description [of
why the Export Buyer’s Credit Program and the Lending Program were “similar”] might be
helpful, it is not required.” Id., 42 CIT at __, 352 F. Supp. 3d at 1329.
This Court also found adequate Commerce’s explanation of its similarity finding in
Solarworld Americas, Inc. v. United States, 40 CIT __, __, 182 F. Supp. 3d 1372, 1377-78 (2016),
Court No. 18-00155 Page 24
which again involved the Export Buyer’s Credit Program and the Lending Program. There, the
parties disagreed as to whether Commerce had adequately explained its similarity finding. As
summarized by the Court, Commerce stated the basis for its finding:
[N]oting that it lacked a calculated rate for the Export Buyer’s Credit Program from
another responding company, Commerce applied the second level of its AFA rate
selection hierarchy for administrative reviews. . . . Thus, it selected the rate
calculated for the [Lending Program] in this same administrative review to the
Export Buyer’s Credit Program after determining that the two programs were
similar. . . . Commerce supported its determination that the programs were similar,
noting that both programs call for financial institutions to provide loans at
preferential rates.
Solarworld Americas, Inc. v. United States, 40 CIT __, __, 182 F. Supp. 3d 1372, 1377-78 (2016)
(emphasis added) (record citations omitted). The Court found that “Commerce’s logic in
considering the programs similar [was] reasonably discernible because both loan programs
perform similar functions in support of Chinese industry by offering lower interest rates on loans
than would otherwise be available to these companies.” Id., 40 CIT at __, 182 F. Supp. 3d at 1377
n.8. Considering the similar purposes of the programs it is fair to presume that the subsidy provided
would be about the same and that the benefit conferred by each program would be about the same.
As in Changzhou II and SolarWorld, Commerce’s rationale for finding that the Export
Buyer’s Credit Program and the Export Seller’s Credit Program were similar is reasonably
discernible. Plaintiffs point to the dearth of information on the record regarding the specific terms
and conditions of the two programs, insisting that Commerce could not reasonably have compared
them. While programmatic details might be useful, in this case what is needed is a way to find the
size of the benefit that the respondents could reasonably be said to have received, so that a
percentage can be added to the amount of the countervailing duty. Thus, the details of the program
are less important than the benefit conferred. See Final IDM at 12-13 (“Commerce selected the
Export Seller’s Credit Program because it confers the same type of benefit as the Export Buyer’s
Court No. 18-00155 Page 25
Credit Program, as both programs are subsidized loans from the China [Export Import] Bank.”);
see also Clearon, 43 CIT at __, 359 F. Supp. 3d at 1347 (discussing both programs).
As their names indicate, each program’s purpose is to support Chinese industry by
promoting exports. See Heze’s Sec. III Quest. Resp., Ex. 10 at Art. 2 (Rules Governing Export
Buyers’ Credit, dated Nov. 20, 2000) (English trans.) (“The Export Buyer’s Credit refers to the
medium and long-term credit offered by the [China Export Import] Bank to creditworthy foreign
borrowers to support the export of Chinese capital goods, services.”); Chlorinated Isocyanurates
From the People’s Rep. of China, 79 Fed. Reg. 10,097 (Dep’t Commerce Feb. 24, 2014), and
accompanying Preliminary Decision Mem. (Feb. 11, 2014), subsec. XII.A.3 (“The purpose of [the
Export Seller’s Credit Program] provided by [the China Export Import Bank] is to support the
export of [Chinese] products and improve their competitiveness in the international market. The
export seller’s credit [i]s a loan with a large amount, long maturity, and preferential interest rate.”).
Given their common purpose, it is not unreasonable to conclude that the interest rate charged for
the loans would be about the same. That is, each is a program initiated by the Government of China
to provide below-market-rate loans to benefit Chinese producers. While additional information,
had it been provided by the Government of China, may have allowed Commerce to make a more
detailed comparison of the two programs, Commerce’s conclusions regarding the rate of
subsidization (and hence the benefit conferred) are adequately supported by the record. See
Clearon, 43 CIT at __, 359 F. Supp. 3d at 1360-61 (upholding the 0.87 percent rate as supported
by substantial evidence).
Accordingly, Commerce’s selection of 0.87 percent as the AFA rate for the Export Buyer’s
Credit Program is sustained.
Court No. 18-00155 Page 26
CONCLUSION
Based on the foregoing, Commerce’s use of its hierarchy and the resulting 0.87 percent
rate for the Export Buyer’s Credit Program are supported by substantial evidence and otherwise in
accordance with law. Judgment shall be entered accordingly.
/s/ Richard K. Eaton
Richard K. Eaton, Judge
Dated: $SULO
New York, New York
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01-03-2023
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04-07-2020
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https://www.courtlistener.com/api/rest/v3/opinions/3979004/
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H. A. English brought this suit against the Galveston-Houston Electric Railway Company to recover damages alleged to have been sustained by him as a result of a collision between one of defendant's cars and a rent automobile owned by plaintiff. The damages claimed were the amount which plaintiff alleged he necessarily expended in the reasonable repairs of the automobile and the loss of net profits which he claimed he would have made through renting of the car during the period in which such repairs were being made. The case was tried before a jury, which returned a verdict in favor of plaintiff for $500, itemizing the same as $363.30 as the reasonable cost of repairs and $136.70 as loss of net profits, upon which judgment was accordingly entered. Defendant has appealed.
Appellant's seventeenth assignment of error is as follows:
"The verdict of the jury and the judgment of the court thereon, in so far as the same allow the plaintiff a recovery of the sum of $363.30 as the amount of reasonable repairs expended by plaintiff upon said automobile, is without any evidence to support it in that there was absolutely no testimony of any kind or character showing or tending to show, or from which the jury might have found, that the amount expended by plaintiff was reasonable."
The only evidence on the question of the value of the repairs found in the record is as follows:
Plaintiff testified:
"After the accident occurred I had my automobile taken up to the Updegraff-Hupp Automobile Repair Company; had them to work on the car and place it in good condition. I paid them for their services. They rendered me a bill for their services, and I paid them. I think I would be able to identify the receipted bill if I saw it."
The witness examined a paper handed to him, and continued:
"This is the receipted bill that I received from the Updegraff Hupp Automobile Company, marked paid."
The receipted bill was then introduced in evidence, and is as follows:
"June, 1913.
"Mr. Harry English to Undegraff-Hupp Auto Repair Co., Dr.
Work on Chalmers 30, total ____________ $98.30
"Paid 7/7/13. U. P. D. E."
Witness continued:
"Mr. A. Baushell performed services in regard to the repairing of this machine. He worked on the top; fixed the bows and the top — the cloth. He rendered me a bill for his services, and I paid him. Nic Bohn Son rendered me services in regard to fixing it up and rendered me a bill, which I paid. These are the receipted bills I received from Mr. Baushell and Nic Bohn."
The receipted bills were then offered in evidence, and are as follows:
"Galveston, Texas, June 12, 1913.
"Mr. H. A. English to A. Baushell Co., Dr. June 12. Repairs on auto and top ............... $35.00
"Paid. 4 Baushell."
"Galveston, Texas, June 12, 1913.
"Mr. H. A. English to Nic Bohn Son, Dr. To body and painting auto ............... $185.00
"Paid. Nic Bohn Son."
The witness continued:
"The only other expense I incurred In placing the car in its original condition (that is; prior to the time of the accident) was only just as was written down, the tires and the towing, and such as that. I forget how much I paid for the tires; I can't recollect. The size of the wheel was a 35 — 4 — somewhere around $35, and for the towing I paid $2. I purchased a new tube for one of the wheels. That was all tore. The casing and tube was tore all to pieces, you know."
There was absolutely no testimony that the amounts charged by the different parties and paid by plaintiff for the repairs was the reasonable value of such repairs.
We think that the plaintiff's automobile was damaged under such circumstances as entitled him to a judgment against the defendant for the expenses necessarily incurred by him for repairs, but he is not entitled to recover more than the reasonable cost of such repairs. It was incumbent upon him, therefore, to prove, not what he paid to others for doing the work, but what the repairs made were reasonably worth; and, in the absence of such proof, the jury was without competent evidence upon which to base a verdict. Railway v. Warren, 90 Tex. 566, 40 S.W. 6; Wheeler v. Railway, 91 Tex. 361, 43 S.W. 876; Railway v. Pereira, 45 S.W. 767; Railway v. Bellew, 22 Tex. Civ. App. 264, 54 S.W. 1079; Railway v. Taylor, 58 S.W. 166; Railway v. Sampson, 64 S.W. 692; Railway v. Patterson, 27 Tex. Civ. App. 249, 65 S.W. 202; Dallas v. Moore,32 Tex. Civ. App. 230, 74 S.W. 95.
The receipted bills admitted in evidence were merely memoranda of the amounts paid by plaintiff for repairs and were not sufficient *Page 668
to show that the amounts so charged were reasonable; and, while admissible to show that he had paid for repairs, it was still incumbent upon plaintiff to prove, by other evidence, the reasonableness of the charges. In themselves the receipted bills were not evidence of this fact. Railway v. Harriett, 80 Tex. 82, 15 S.W. 556. These conclusions necessarily lead to a reversal of the trial court's judgment.
We think that plaintiff's pleadings sufficiently alleged loss of earnings or net profits from being deprived of the use of his rent automobile while it was undergoing repairs, and that the allegations were sustained by evidence which was competent, and that the court properly submitted this issue to the jury; and appellant's several assignments of error relating to these matters must be overruled.
We have carefully examined all of appellant's assignments of error, and, with the exception stated, none of them, in our opinion, points out reversible error. For the error indicated, the judgment of the court below is reversed, and the cause remanded.
Reversed and remanded.
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01-03-2023
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07-06-2016
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https://www.courtlistener.com/api/rest/v3/opinions/4051437/
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COUR':I' OF' APPEALS DATE.
ABLE ACOSTA,CLERK 8-9-15
P.O. BOX 12308 CAPITOL STATION
AUS'I'IN /l'EXAS 78711
RE: CAUSE No.tr.ct.no.60ll
STYLE: NEiiV EVIDENCE
DEAR MR.ACOSTA,
My name is BOBBY OXFORD SR,TDCJ no. l656735,BOYD UNIT,200 spur ll3,TEAGUE,
TEXAS 75860.
I have resently filed a motion to RECONSIDER and a brief with some NEW
.EVIDENCE.
I have JUSt recieved more NEW EVIDENCE about the attorney tnat I had,JOHN
S.YOUNG. I am enclosing this as NEW EVIDENCE.
Ishould tell you that I had filed with the STATE COMMISSION,ORGANIZED
CRIMINAL .ACTIVITY against the JUDGE BEN WOODWARD,ATTORNEY JOHN S. YOUNG,
PROSECUTOR GEORGE McCREA and CITY OFFICIALS.
'l'he state Commission has taken this case.· The case no. is CJC.No. 15-0958-
DI. I did send them some of the evidence.
As you will see JOHN YOUNG is/ was capeable of perJury and forgary. I do
believe this is more proof that MR.YOUNG was only doing cases for money and
NOT looking out for his clients wellbeing. see GREEN v. STATE 667 sw 2d 528
(tex.crim.app.l984)"assistance of counsel" means rendering the effective
assistance by an attorney who is concerned over the welfare of his client and
NOT JUS1' HIS POCKETBOOK. U.S. C. A. CONST. AMEND. 5, 6.
This is NEW· EVIDENCE that was sent to me 8-6-15 ..•
"By CHELSEA REINHARD / march 26,2015 5:00 pm a SAN ANGELO bail bondsman
and a HIGH-POWER defense attorney have both been indicted on multiple
felonies that center on the WILL of an alleged pedophile that died of natural
causes last year.
P.l of 2
·,
YOUNG,SULLIVAN"S defense attorney in a pending case against the deceased
for child pornography and online solicitation of a minor, has also been
indicted as a CO-DEFENDANT in the case. He has been charged with one count of
FORGERY, one count of 'I'HEF'f OF PROPER'l'Y GREATER 'I'HAN OR EQUAL TO $ 200.000,
one count of AGGRAVATED PERJURY, and FIRST-DEGREE.MISAPPLICATION BY A
FIDUCIARY. 'fhe aggregate sum of money on Sullivan's domestic bank accounts,
as reported by YOUNG, is $ 4,442,022.48. Sullivan had well over $ 1 million
in real estate as well, and several bank accounts overseas with over $ 200.000
1.n total.
·rhe case against ZAPATA and YOUNG is being prosecuted by CLIFF HERBURG of
the ATTORNEY GENERAL's office."
I do believe that this is a positive show that MR.YOUNG will go to the
extream to do what ever he wishes.
Will you please take this into consideration,being I have put in everything
I have filed that JOHN YOUNG was involved in.perJury and organized criminal
activity?
'fHANK YOU FOR YOUR 'l'IME AND PROM'I' CONFERMATION 'rHA'f YOU HAVE PRESEN'l'ED MY
MO'l'ION F'OR RECONSIDERATION,BRIEF AND THIS NEw EVIDENCE.
CERTIFICATE OF SERVICE
I hereby have sent this enstrament by u.s.mail postage paid to the above
on this 9th day of ALJGUS'I', 2015.
BOBBY OXFORD SR.
TDCJ uo.l656735
BOYD UNI'r
200 spur 113
TEAGUE,TEXAS 75860
DEFENDAN'r EX PARTE
P.2 of 2
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01-03-2023
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09-29-2016
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https://www.courtlistener.com/api/rest/v3/opinions/3840603/
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Argued December 13, 1935; reversed January 14; rehearing denied March 24, 1936 ON THE MERITS (53 P.2d 525)
Department 2.
On September 5, 1934, in a suit then pending in the circuit court for Multnomah county and heard before the Honorable Clarence H. Gilbert, one of the judges thereof, the plaintiff, Malka Bestel, was granted a decree of divorce from the defendant, Fred Bestel, and was awarded the custody of their minor child, Frederic Bestel, then about 15 months of age.
On January 24, 1935, the defendant filed a motion in said court, supported by his own affidavit alone, praying that the child be taken from its mother and be awarded to him. This affidavit wholly failed to show that any change in the condition of things had occurred after the entry of the decree or that any valid *Page 103
grounds existed warranting a modification of the decree in respect to the custody of the child. Affidavits in opposition thereto were filed on behalf of the plaintiff, and on January 30, 1935, a hearing was had on said affidavits, the plaintiff being present at the time with her witnesses and not being permitted to offer any testimony, either for or against the motion, but at that time she was directed to bring the child into court. Thereafter and on February 4, 1935, and while the plaintiff was present in court with the child, without making or entering any written order and purely on the verbal order of Judge Gilbert, the child was taken from the custody of the mother and delivered over to the Waverly Baby Home, where it was kept for 56 days. Subsequently and on the 28th day of March, 1935, another hearing was had before Judge Gilbert at which time the plaintiff was present and not permitted to testify or offer any evidence in her behalf. Another verbal order was made, directing that the custody of the child should be awarded to the father for the period of six months and after the expiration of that period that it should be turned over to the mother for a like period of time and that thereafter the custody of the child should alternate between them for like periods of time until the child should reach the age of six years, at which time it was directed that an order should then be made determining who should have the permanent custody of the child. At this hearing on March 28, 1935, the only testimony was that of Mrs. Neth, the chief probation officer of the department of domestic relations, over which Judge Gilbert, in addition to his duties as circuit judge, has jurisdiction under the statute. The testimony given by this probation officer was wholly hearsay and none of it was competent or admissible as evidence in the case. From *Page 104
this order last referred to, which was not entered of record until April 6, 1935, and was then entered as a nunc pro tunc order as of March 26, 1935, the plaintiff has appealed.
Until April, 1935, no entry of any order in respect to any of the matters above referred to was made of record and everything that had been done in respect to the custody of this child was done pursuant to the verbal orders of the court, and there was no record made of any of said proceedings except merely the filing of said affidavits, and all orders entered in respect to any of said matters were nunc pro tunc orders entered long after these verbal orders had been made and, from each and all of these orders, it appears that the court acted on information secretly conveyed to him by Mrs. Neth, whom he had ordered to make an investigation, none of which said information was or ever has been made a matter of record in said cause.
The order appealed from is in the following words:
"The motion of the defendant, asking that the decree herein be modified as to the custody of the minor child by taking custody from the mother (plaintiff) and awarding the child to defendant, came on for hearing on the 30th day of January, 1935, and the court having heard the arguments of counsel and considered the affidavits for and against said motion, and also having had the benefit of an investigation by the staff of this department pursuant to an order for such investigation entered herein on the 30th day of January, 1935, and there having been disclosed a situation of extreme and unwarranted bitterness between the parents of the child and their relatives, which is extremely disastrous to the welfare of the child, it is therefore ORDERED that the custody of said child be, and it is hereby, awarded to the father for a period of six months dating from the 1st day of March, 1935; that the mother have the custody of said child for six months beginning with the 1st day of September, 1935; *Page 105
the custody of the child thereafter to alternate between the two parents for periods of six months each, until it arrives at the age of six years, at the expiration of which time the court will determine such disposition as may be best for the welfare of the child. During the time the child is in the custody of the plaintiff, the defendant is ordered to pay to the clerk of this court for its support the sum of $15.00 per month. The parent not having custody may visit the child while it is in the home of the other parent, and the court enjoins the parties and their relatives to refrain from all controversy, discord or discourtesy during the occurrence of said visits; and if either party, or those with whom they place the physical custody of the child, wilfully violates this injunction, the court may, on its own motion, upon such facts being shown, change the custody of the child as the situation as disclosed after hearing and investigation may warrant. The controversy and discord in regard to the custody of this child having been constantly brought to the attention of this court and its staff, unofficially, practically ever since the decree was granted, should said discord and controversy continue in the future to the detriment of said child, as it has in the past, the court reserves the right of its own motion, after notice to the parties and due hearing, of again changing the custody of said child in such manner as may appear best for its welfare.
"It is further ORDERED that said minor child shall not be taken out of the State of Oregon by either of the parties, or any one else, without the written approval of this court first obtained. It is further ORDERED that the temporary order heretofore made on the 4th of February, 1935, temporarily committing said minor child to the Waverly Baby Home, be, and it is hereby vacated, and that the defendant pay the cost of keeping said child in said Waverly Baby Home while there.
"This order having been made on the 26th day of March, 1935, and not entered on that date through inadvertence on the part of the court, it is hereby ORDERED that this modification of decree be effective *Page 106
as of March 26, 1935. (Signed) Clarence H. Gilbert, Judge."
The other nunc pro tunc orders read as follows:
"The defendant having filed a motion herein on the 24th day of January, 1935, asking that the decree of the court entered on the the 10th day of September, 1934, awarding the custody of the minor child of the parties to the plaintiff, be modified by giving the custody of the child to the defendant, which motion came on for hearing on the 30th day of January, 1935, and the court having considered the affidavits of the parties for and against said motion, and having listened to arguments by counsel, and being in doubt as to what disposition should be made of the child for its welfare, the said doubt arising principally on account of the interference of relatives of the parties,
"Now, THEREFORE, in order to enable the court to make a proper disposition of the child under these unfortunate circumstances, it is hereby ORDERED that an investigation be made by the staff of this court of the child and its parents and the relatives of the parties who are concerned with this case.
"This order for investigation having been verbally made by this court on or about the 30th day of January, 1935, and the court having failed to enter a written order, it is hereby ordered that this order be effective nunc pro tunc as of the 30th day of January, 1935. (Signed) Clarence H. Gilbert."
"This court having heretofore, on the 30th day of January, 1935, ordered an investigation by the staff of this court to aid it in awarding the custody of the minor child of the parties, and there having been already disclosed a feeling of extreme bitterness and contention between the parties, and particularly between the relatives, rendering it desirable for the welfare of said child that it be placed for a time in neutral hands, it is therefore ORDERED that said minor child be placed temporarily, and until further order of this court, pending a decision on a motion now before the court with regard to the custody of said child, in the Waverly Baby Home, of Portland, Oregon, and that the parents of *Page 107
said child have equal visiting privileges with said child at said home, and that no one excepting the parents of the child themselves be permited to visit said child while in said home.
"This order for temporary commitment to Waverly Baby Home having been verbally made by this court on or about the 4th day of February, 1935, and the court having failed to enter a written order, it is hereby ordered that this order be effective nunc pro tunc as of the 4th day of February, 1935. (Signed) Clarence H. Gilbert, Judge.
"Plaintiff's motion `To vacate order changing custody of minor child, and if such motion is denied, motion to place custody of child in plaintiff pending appeal', came on for hearing on the 3d day of April, 1935, and it appearing to the court, from a reading of the motion, that all matters therein contained were passed upon in the Order awarding custody of the minor child of the parties duly made and entered on the 26th day of March, 1935, and the Court having refused to hear arguments of counsel, it is therefore ORDERED that said motion be, and it is hereby denied. (Signed) Clarence H. Gilbert, Judge."
We have set up this series of orders, which were entered nunc pro tunc long after this 15-months-old child had been taken from the custody of its mother and delivered over first to the Waverly Baby Home and then to the father, to show the course of procedure that was adopted and followed by the court in these proceedings which are wholly equitable in their nature and which should have been governed by the usual rules of practice and procedure pertaining to a court of equity. In the absence of a showing that some change in the condition of things has occurred subsequent to the entry of a decree of divorce which awards the custody of a minor child to one of its parents, or that there has been some misconduct on the part of the one having the custody, the decision of the court awarding *Page 108
the custody of a minor child is final and can not be modified by the court rendering it. See Merges v. Merges, 94 Or. 246
(186 P. 36); Rasmussen v. Rasmussen, 113 Or. 146 (231 P. 964);Ellenburg v. Woodson, 131 Or. 440 (283 P. 27); Sachs v.Sachs, 145 Or. 23 (25 P.2d 159, 26 P.2d 780). And when an order changing the custody of a minor child is made, it can be done only after notice and an opportunity to be heard has been awarded to the parties and an order made and entered in the suit.
As we have stated, the only competent evidence before the court at the time this child was taken from the custody of its mother and turned over to the Waverly Baby Home, and later to its father, is the affidavit of the defendant and this wholly fails to state any misconduct upon the part of the mother or any change in the condition of things since the rendition of the original decree. The court, therefore, had no authority to order the child to be taken from the custody of its mother or to modify the original divorce decree in any respect.
It appears from these nunc pro tunc orders that, immediately following the filing of defendant's affidavit, the court directed "that an investigation be made by the staff of this court of the child and its parents and the relatives of the parties who are concerned with this case". The orders also recited that the court "had the benefit of an investigation by the staff of this department pursuant to an order for such investigation entered herein on the 30th day of January, 1935". What information was conveyed to Judge Gilbert by the members of his staff is not disclosed by the record, but the orders made by him and later entered in the case show that he not only received but that he acted upon the information secretly conveyed to him by the *Page 109
members of his staff. Such a course of procedure is unknown to our law. It is contrary to the very essence of the administration of law in any judicial proceeding. Judge Gilbert had no more right or authority to consult with or be advised by any member of his so-called staff in his decision of this case than would the judge of any court have the right and authority to go outside the record and be governed by communications privately conveyed to him in respect to matters pending before him for decision. Section 10 of article I of the constitution of this state provides:
"No court shall be secret, but justice shall be administered openly and without purchase, completely and without delay, and every man shall have remedy by due course of law for injury done him in his person, property, or reputation."
In justice to Judge Gilbert, it may be stated that he is the particular circuit judge having jurisdiction over the department of domestic relations and is required, when exercising jurisdiction thereover, to appoint such probation officers as are recommended to him by the Child Welfare Commission of the state of Oregon, and, in respect to such matters, Mrs. Neth is his chief probation officer of that department and, as such, she makes reports to him. Obviously both of them believed that he as circuit judge had jurisdiction and authority to appoint her to obtain information for him in respect to the custody of this child. Section 28-849, Oregon Code 1930, provides:
"There shall be automatically assigned to the department of domestic relations herein provided for all uncontested divorce suits and all divorce suits where the parties have a child or children under 18 years of age, and all of the proceedings mentioned in the foregoing section, now pending, or such suits and proceedings of the same character which may hereafter *Page 110
be filed, (and) shall be heard and determined in said department of domestic relations."
Under this section, these proceedings came regularly on for hearing before Judge Gilbert but, while acting as circuit judge, in the trial of the proceedings, there is no statutory authority for any investigation to be made by any person. The proceedings are to be determined in his court as in all the other circuit courts of the state. Section 23, article IV of the constitution, provides:
"The legislative assembly shall not pass special or local laws in any of the following enumerated cases, that is to say: * * * 3. regulating the practice in courts of justice."
While acting as a circuit judge and in respect to any matters coming before him as such, Judge Gilbert can have no chief of staff or other probation officer to make any investigation for him or render to him any advice in respect to any matter that is pending before him for judicial decision. Such advice, if tendered, would constitute a contempt of court and would be punishable as such.
As will be seen there is some confusion, not relevant, in the dates when some of these proceedings were had. This arises from the fact that the record shows that Mrs. Neth's testimony was taken on the 28th of March while the orders later made and based thereon are dated as of March 26.
The order appealed from will, therefore, be reversed and each and all the orders referred to must be vacated and set aside. The cause will be remanded to the court below with directions to restore the custody of the child to its mother in accordance with the directions contained in the original decree, and it is so ordered.
CAMPBELL, C.J., and BEAN and BAILEY, JJ., concur. *Page 111
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01-03-2023
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07-06-2016
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https://www.courtlistener.com/api/rest/v3/opinions/3386984/
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This case is before us on appeal from order dated May 19th, 1930, denying a petition filed by the complainant seeking to have the court vacate its decrees dated June 25, 1929, August 23, 1929, and January 29, 1930, and each of them, insofar as same relate to and affect the right of complainant to a certain fund described therein.
A final decree was entered in the case on March 30, 1929, in the following language: *Page 789
"This cause coming on to be further heard upon the bill of complaint, the joint and several answer of the defendants J. W. Cooper and Mrs. J. W. Cooper, his wife, the testimony taken by and the report of the Special Master in Chancery heretofore appointed, and the argument of solicitors for the parties complainant and defendant, and the Court upon consideration thereof, being advised of its judgment in the premises, finds that the complainant, P. F. Connelly, trading as P. F. Connelly Paving Company, has failed to sustain the material allegations of the bill of complaint by the testimony and proof offered and taken in his behalf, and that said complainant is not entitled to the relief sought by his said bill of complaint, or to any relief thereunder, and that the equities of this cause are with the defendants J. W. Cooper and Mrs. J. W. Cooper, his wife.
"IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED as follows:
"1. That the said bill of complaint be and the same is hereby dismissed;
"2. That the injunction issued in this cause on January 25, A.D. 1928, restraining and enjoining said defendants from removing or withdrawing certain money deposited in the Citizens Bank
Trust Company in Tampa, Florida, under the terms of a stipulation signed and filed herein on February 3, 1928, by the solicitors for the parties complainant and defendant in this cause, and others, be and the same is hereby dissolved so far as the injunction issued in this cause affects the same, but said money shall be held by said Citizens Bank Trust Company subject to the further order of this Court to be made in that certain cause *Page 790
pending in this Court, wherein W. R. Furr, Jr., is complainant, and J. W. Cooper is defendant, in which cause a temporary injunction was issued by this Court on January 19, A.D. 1928, and filed for record and recorded in Chancery Order Book 62, page 243, in the office of the Clerk of the Circuit Court of Hillsborough County, Florida;
"3. That the complainant pay the costs of this proceeding, to be taxed by the Clerk of this Court.
"DONE AND ORDERED in chambers, at Tampa, Florida, this 30th day of March, A.D. 1929.
L. L. PARKS, Judge."
On April 15th the complainant in the court below filed its notice of appeal from final decree which was recorded in Chancery Order Book 95, page 405.
It will be observed that the appeal was from a final decree dissolving an injunction. No application was made under the provisions of Section 3170, Rev. Gen. Stats., 4962 Comp. Gen. Laws 1927, to the Supreme Court, or any Justice thereof, for an order of supersedeas. Neither was any order of supersedeas made. Therefore, there was no supersedeas of the final decree appealed from. The subsequent orders made by the chancellor, and which constitute the subject of the instant appeal, were made subsequent to the filing and recording of the notice of the appeal of April 15, 1929.
It is the contention of the appellant that because he filed what he terms a supersedeas bond after the entry of the final decree and upon the entry of his appeal from the final decree that the chancellor was without jurisdiction to make and enter subsequent orders relative to the funds involved in that suit.
The entry of the appeal, together with the filing of the so-called supersedeas bond, did not operate as a supersedeas *Page 791
of the final decree because the final decree dissolved an injunction in which case it was necessary to procure an order of supersedeas of this Court, or of a Justice of this Court. There being no supersedeas of the final decree, the Chancellor retained jurisdiction to make such further orders in the premises as he might deem proper and in accordance with law and rules of practice and procedure.
There appearing in the record no reversible error, the order of the chancellor should be affirmed and it is so ordered.
Affirmed.
WHITFIELD, P. J., and STRUM, J., concur.
TERRELL, C. J., concurs in the opinion and judgment.
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01-03-2023
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07-05-2016
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https://www.courtlistener.com/api/rest/v3/opinions/3386989/
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This case comes before us after briefs filed on renewal of motion to dismiss the appeal.
The record discloses the following state of facts: On June 12th, 1934, letters of administration were issued to the appellees in the matter of the Estate of Angello Pasquarello, deceased, late of Dade County, Florida. On July 21, 1934, proof of publication of notice to creditors was filed in the County Judge's Court. On July 2, 1934, proof of claim of Stephen G. Pierce was filed in the County Judge's Court, the same being based on an alleged promissory note appearing to have been executed November 20, 1925, by the decedent, payable to the order of S.G. Pierce, upon which he claimed a balance due of $1,250.00 with interest from May 30, 1927. (The record shows that Stephen G. Pierce and S.G. Pierce are identical).
The claim was not paid and on February 19th, 1935, Pierce filed suit based on the identical cause of action in the Civil Court of Record of Dade County. In due course pleas were filed by the administrators and then followed other pleadings. That proceeding appears to have resulted in a non-suit in favor of defendants when it came on for trial after pleadings were settled.
On January 20th, 1936, the administrators filed petition for disallowance of claim on the following grounds:
1. "On July 2d 1934, S.G. Pierce who is otherwise known as Stephen G. Pierce, filed a claim against the above estate in this Court on account of a promissory note made by Angello Pasquarello to said Pierce and in said claim demanded *Page 332
the payment to him of $1250.00 being the balance due on said note with interest.
2. "Your petitioners filed their written objections to said claim and refused to pay the same and thereupon on February 19, 1935 (W.F.B.) said Pierce filed an action on said note against them in the Civil Court of Record for Dade County, Florida. A copy of the declaration in said action is attached hereto and made a part hereof with like effect as though set out herein at length.
3. "Your Petitioners filed pleas to said declaration and the plaintiff filed replications thereto. Said replications were demurred to and the demurrer was sustained. Copies of said pleas, replications, demurrers and order are attached hereto and made a part hereof with like effect as though set out herein at length.
4. "At a term of said Civil Court of Record, said cause was tried to the Honorable A.B. Small and a jury; and at the conclusion of the case the Court announced that it would direct a verdict for the defendants. At said announcement, the plaintiff took a non-suit and thereupon final judgment was entered for the defendants. A certified copy of said judgment is attached hereto and made a part hereof with like effect as though set out herein at length. Thereafter, the plaintiff took a writ of error from the Circuit Court of the Eleventh Judicial Circuit to said judgment within the time required by law and afterwards, on January 15th, 1936, said writ of error was dismissed.
5. "Said alleged claim is the only one now asserted against said estate and it has been adjudicated by a court of competent jurisdiction not to be valid and enforceable."
To the petition there was attached and made a part thereof a copy of the record and proceedings instituted and consummated in the Civil Court of Record. *Page 333
A pertinent allegation of the declaration was:
"That on or about the ____ day of July, 1934, the said plaintiff herein filed his claim in the County Judge's Court in and for Dade County, Florida, against the estate of Angello Pasquarello, deceased, in the sum of one Thousand Two Hundred Fifty Dollars ($1,250.00), together with interest thereon from May 30, 1927, together with reasonable attorney's fees; that the period for filing claims against the estate of the said Angello Pasquarello, deceased, as provided by the laws of the State of Florida, has expired; that said defendants have refused to pay said claim or any part thereof."
On January 28, 1936, claimant filed petition for compulsory settlement of claim, as follows:
"Comes now S.G. Pierce, by his undersigned attorney, and respectfully represents unto the Court that on or about the second day of July, 1934, he filed his claim in writing in the above styled court against the estate of Angello Pasquarello, deceased; that said claim was filed within the period of eight months from the date of the first publication of notice to creditors made in the above estate; that no objection to said claim was filed by the administrators of said estate within the time prescribed by law; that no extension of the period within which such objection might have been filed was obtained by said administrators; WHEREFORE, petitioner moves the Court for an order directing the administrators of the above estate to make payment of your petitioner's claim."
On January 31, 1936, the County Judge entered his order disallowing the claim as follows:
"This cause came on to be heard on the application of S.G. Pierce for an order requiring the payment of the claim heretofore filed by him in the above estate and also *Page 334
upon the application of the personal representatives for an order disallowing said claim, and the Court having found that the said claim was properly filed as required by law and that no objections had been filed thereto by the representatives, and having further found that the claimant brought suit on said claim within the time allowed by law for filing of such objections and that such suit resulted in a judgment of non-suit for the representatives and the Court being otherwise advised in the premises, it was ordered, adjudged and decreed that the application of the said S.G. Pierce be, and the same is hereby denied, and the petition of the said administrators be, and the same is hereby granted and the said claim of the said S.G. Pierce be, and the same is hereby disallowed and held not to be a valid claim against the said estate or the said representatives or the assets of Angelo Pasquarello, deceased, in their hands, custody, or control."
From this order appeal was taken to the Circuit Court of Dade. County and on April 18, 1936, order was entered by the Circuit Court affirming the order appealed from.
From that order this appeal was taken.
When the claimant elected to file suit on his claim in the Civil Court of Record of Dade County he selected and invoked that jurisdiction to adjudicate his rights and could not after failure to prevail on the merits of his cause of action, and after waiting until long after the time had expired in which he could have instituted another suit on the claim, go back into the probate court and require the allowance of the claim. This is true because when claimant proceeded to prosecute his claim in the Civil Court of Record, alleging that the claim had been presented and filed in the County Judge's Court and that the administrators had refused to pay the same, he waived the statutory provision *Page 335
(Sec. 122, Probate Act of 1933) relative to the filing of objections to claims within ten calendar months from the first publication of notice to creditors and thereby caused the twelve months limitation in which suit must be commenced to begin to run.
The record shows no error in the order appealed from and therefore, the same is now affirmed.
So ordered.
ELLIS, P.J., and TERELL, J., concur.
BROWN and DAVIS, J.J., concur in the opinion and judgment.
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422 F.3d 1208
In re Gamal Ahmed FARAGALLA and Abeer Marie Faragalla, Debtors,Gamal Ahmed Faragalla; Abeer Marie Faragalla, Appellants,v.Access Receivable Management; Wells Fargo Bank South Dakota, N.A.; Educap Inc., Appellees.
No. 04-1464.
United States Court of Appeals, Tenth Circuit.
September 12, 2005.
Submitted on the Briefs:* Gamal Faragalla and Abeer Faragalla, pro se.
Douglas W. Jessop and Steven T. Mulligan, Jessop and Company, P.C., Denver, CO, for Educap Inc., Appellee.
Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.
HARTZ, Circuit Judge.
1
Appellants Gamal Ahmed and Abeer Marie Faragalla, proceeding pro se, appeal the district court's order dismissing their appeal from the United States Bankruptcy Court for the District of Colorado. The district court found the notice of appeal untimely and dismissed for lack of jurisdiction. We have jurisdiction under 28 U.S.C. § 158(d) and reverse.
2
In an order dated September 10, 2004, the bankruptcy court denied the Faragallas' motions for default judgment and to vacate settlement conference, but granted a motion to strike one of their pleadings. The order was recorded as item 22 in the docket as follows:
3
9/10/2004 Order Granting Motion To Strike And Denying Motion For Default Judgment And Denying Motion To Vacate Settlement Conference (related document(s) 12 Motion to Vacate, 19 Motion to Strike, 13 Response, 7 Motion for Default Judgment). (vxd) (Entered: 09-13-2004)
4
R. Vol. I Bankruptcy Docket (emphasis added).
5
The Faragallas appealed to the United States District Court for the District of Colorado. See 28 U.S.C. § 158(a). The stamp on their notice of appeal establishes that it was filed on September 21, 2004. EduCap Inc. and Wells Fargo Bank South Dakota, N.A. (collectively, the Lenders), the real parties in interest, filed a motion to dismiss the appeal, arguing that (1) the notice of appeal was untimely and, in the alternative, (2) dismissal was appropriate because the Faragallas failed to file a motion for leave to appeal an interlocutory order. See Fed. R. Bankr.P. 8001(a) and 8002(a). The district court found the notice of appeal to be untimely and dismissed the appeal for lack of jurisdiction. See Herwit v. Deyhimy, 970 F.2d 709, 710 (10th Cir.1992) (failure to file timely notice of appeal is a jurisdictional defect). The Faragallas then appealed to this court.
6
Under Federal Rule of Bankruptcy Procedure 8001(a), appeals from orders and judgments of bankruptcy courts may be taken to the district court in conformity with the requirements of 28 U.S.C. § 158(a) and Bankruptcy Rule 8002. Appeals from "final judgments, orders, and decrees" may be taken as of right. 28 U.S.C. § 158(a)(1); see Fed. R. Bankr.P. 8001(a). But interlocutory orders and decrees ordinarily may be appealed only "with leave of the court." 28 U.S.C. § 158(a)(3); see Fed. R. Bankr.P. 8001(b). Rule 8002(a) requires that "[t]he notice of appeal shall be filed with the clerk within 10 days of the date of the entry of the judgment, order, or decree appealed from." (emphasis added). See Fed. R. Bankr.P. 9021 ("A judgment is effective when entered as provided in Rule 5003.") The clerk must keep a docket for each case and "enter thereon each judgment, order, and activity in that case." Fed. R. Bankr.P. 5003(a). "The entry of a judgment or order in a docket shall show the date the entry is made." Id.; see Stelpflug v. Fed. Land Bank of St. Paul, 790 F.2d 47, 49 (7th Cir.1986) (per curiam) ("When entering an order on the docket, the clerk of the bankruptcy court is required to make a notation in the docket to show the date the entry was made, pursuant to Bankruptcy Rule 5003(a).")
7
The district court erred in assuming that judgment was entered on the date the order was signed by the bankruptcy judge. Although this may be true in some cases, it is not true in all. "The signing of the order or judgment by the judge does not constitute an `entry' by the judge. The entry occurs when it is noted on the docket and thereby becomes public. . . . A document is entered when the clerk makes the notation on the official public record, the docket, of the activity or submission of the particular document." In re Henry Bros. P'ship; United States, 214 B.R. 192, 195 (8th Cir. BAP (Mo.)1997).
8
In this case the bankruptcy judge's signed order is dated Friday, September 10. The docket entry, however, indicates that the order was not entered by the clerk until the following Monday, September 13. See Stelpflug, 790 F.2d at 50 (hypothesizing the identical situation). Thus, the 10-day filing period did not begin to run until September 13 and expired September 23. The Faragallas' September 21 notice of appeal was timely.
9
The Lenders also argued to the district court that it should dismiss the appeal because the Faragallas failed to file a motion for leave to appeal an interlocutory order. They are correct that the Faragallas are appealing an interlocutory order. "Generally, an order is final if it ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." In re Durability, Inc., 893 F.2d 264, 265 (10th Cir.1990). In the bankruptcy context we apply the general rule to "the particular adversary proceeding or discrete controversy pursued within the broader framework cast by the petition." Id. at 266. Even under this narrower application of the general rule, the order appealed by the Faragallas is interlocutory because it does not resolve the merits. See, e.g., Grandbouche v. Clancy, 825 F.2d 1463, 1468 (10th Cir.1987) (denial of motion for default judgment is an interlocutory order).
10
The Faragallas' appeal from the bankruptcy court therefore must proceed, if at all, under 28 U.S.C. § 158(a)(3). To proceed under that provision, they must file a motion for leave to appeal with the district court in accordance with Fed. R. Bankr.P. 8003. See Fed. R. Bankr.P. 8001(b). Nevertheless, if the appellant fails to file the required motion but files a timely notice of appeal, Rule 8003(c) requires the district court to make one of the following three choices: (1) grant leave to appeal, (2) order the party to file a motion for leave to appeal, or (3) deny leave to appeal after considering the notice of appeal as a motion for leave to appeal. See In re Am. Freight Sys., Inc., 153 B.R. 316, 319 (D.Kan.1993). Because the district court dismissed the Faragallas' appeal for lack of jurisdiction after mistakenly finding it untimely, we cannot say what course of action the district court would have taken had it realized it had jurisdiction.
11
We REVERSE the district court's dismissal and REMAND to the district court for further proceedings. We DENY the Faragallas' "Emergency Motion to Withdraw the Appeal and to Return the Case to Bankruptcy Court for Investigation of Fraudulent Activities by Appelles [sic]."
Notes:
*
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appealSee Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
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08-14-2010
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NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 7 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-50254
Plaintiff-Appellee, D.C. No.
3:16-cr-01115-BEN-1
v.
GILBERTO AYUN-FLORES, AKA MEMORANDUM*
Gilberto Ayun-Osuna,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 18-50255
Plaintiff-Appellee, D.C. No.
3:16-cr-07106-BEN-1
v.
GILBERTO AYUN-FLORES, AKA
Gilberto Ayon-Flores, AKA Gilberto Ayon-
Osuna, AKA Gilberto Ayun-Osuna, AKA
Gilberto A. Osona,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Submitted April 1, 2020**
Pasadena, California
Before: WARDLAW, MURGUIA, and MILLER, Circuit Judges.
Gilberto Ayun-Flores (Ayun) appeals his conviction at trial for being a
removed alien found in the United States, in violation of 8 U.S.C. § 1326(a). We
have jurisdiction under 28 U.S.C. § 1291. We affirm.
1. The district court abused its discretion by prohibiting Ayun from
introducing evidence of his schizophrenia at the second trial for the purpose of
undermining the reliability of his confession. Crane v. Kentucky, 476 U.S. 683,
688 (1986); United States v. Smith, 638 F.2d 131, 133–34 (9th Cir. 1981).
Although the district court was not required to allow all of the mental health
professionals subpoenaed before the first trial to testify at the second trial, at least
some testimony should have been permitted. Evidence of Ayun’s mental illness
was relevant to the jury’s evaluation of the reliability of his confession, Smith, 638
F.2d at 134, and its probative value was not substantially outweighed by any of the
factors the district court cited in excluding it. Fed. R. Evid. 403.
However, the error was harmless. See United States v. Morales, 108 F.3d
1031, 1040 (9th Cir. 1997) (en banc) (holding that a non-constitutional error is
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2
harmless if “it is more probable than not that the error did not materially affect the
verdict”). Ayun’s confession was relevant to two elements of the crime: (1)
alienage and (2) failure to obtain the permission of the Attorney General to reenter
the United States. The Government presented overwhelming evidence on both
points.
On alienage, the Government introduced a sworn stipulation by Ayun in a
previous proceeding in which he “admitted he [was] an alien, and not a citizen, of
the United States.” It also presented evidence that Ayun had been removed from
the United States on several previous occasions, including only one month before
his arrest on the present charge. None of the evidence presented at trial suggested
that Ayun was anything other than an alien.
As for lack of permission to reenter the United States, a records custodian
testified that there were no documents in Ayun’s A-File indicating that he had
sought or received permission to reenter, when such documents should have been
in the file if they existed. Even assuming Ayun is correct that the jury could have
reasonably concluded that the A-File was incomplete, there was also strong
circumstantial evidence that Ayun lacked permission to reenter, including that he
had been removed only one month before his arrest in this case and that he was
found hiding in the brush approximately a mile north of the United States-Mexico
border and four miles from the nearest port of entry. Considering this evidence,
3
the Government carried its burden of showing a “fair assurance” that the jury’s
verdict was not “substantially swayed” by the district court’s error. United States
v. Seschillie, 310 F.3d 1208, 1214 (9th Cir. 2002).
2. The district court correctly concluded that evidence of Ayun’s
schizophrenia was not admissible to show that he did not knowingly enter the
United States. A defendant charged with a specific intent crime can raise a
diminished capacity defense—that is, a defense that he lacked “the ability to attain
the culpable state of mind which defines the crime.” United States v. Twine, 853
F.2d 676, 678 (9th Cir. 1988). However, diminished capacity is not a defense to
general intent crimes like being an alien found in the United States after removal,
and therefore Ayun was not entitled to raise it. See United States v. Castillo-
Mendez, 868 F.3d 830, 836 (9th Cir. 2017); Twine, 853 F.2d at 679.
Ayun argues that evidence of his mental illness was admissible to show that
he did not act knowingly because he “was in a delusional state when he entered the
United States, and . . . this delusional state made him act out of ignorance, mistake,
or accident.” Reply Br. 21–22. But this is simply a diminished capacity defense
by another name, and the district court was therefore correct to preclude it.
AFFIRMED.
4
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NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 7 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10485
Plaintiff-Appellee, D.C. No. 5:17-cr-00589-EJD-1
v.
MEMORANDUM*
BENJAMIN MORALES,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Judge, Presiding
Argued and Submitted November 12, 2019
San Francisco, California
Before: THOMAS, Chief Judge, and WARDLAW and COLLINS, Circuit Judges.
Benjamin Morales appeals the sentence imposed by the district court for his
conviction, after a guilty plea, of assault on a federal officer under 18 U.S.C.
§ 111(b).1 The district court sentenced Morales under U.S.S.G. § 2A2.2,
*
This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
1
The court has been informed that Morales was released from prison on January 8,
2020. Although he has completed his term of incarceration, Morales is in his first
year of a three-year term of supervised release, which could be affected if he were
“Aggravated Assaults,” as opposed to U.S.S.G. § 2A2.4, “Obstructing or Impeding
Officers,” based on a finding by a preponderance of the evidence that Morales
acted with the intent to cause bodily injury when he threw a chisel at a car being
driven by DEA Special Agent Benjamin Curtis. Morales argues that application of
§ 2A2.2 rather than § 2A2.4 had a disproportionate impact on his sentence and that
the district court therefore should have applied the clear and convincing evidence
standard of proof in determining whether Morales intended to cause bodily injury.
Morales also contends that his sentence is substantively unreasonable. We affirm
the district court’s sentence.
1. “[D]ue process is generally satisfied by using a preponderance of the
evidence standard to prove sentencing factors that are set forth in the U.S.S.G.”
United States v. Jordan, 256 F.3d 922, 927 (9th Cir. 2001). But “when a
sentencing factor has an extremely disproportionate effect on the sentence relative
to the offense of conviction, due process requires that the government prove the
facts underlying the enhancement by clear and convincing evidence.” Id. at 926.
In United States v. Valensia, 222 F.3d 1173 (9th Cir. 2000), vacated and remanded
on other grounds, 532 U.S. 901 (2001), we identified six factors that guide this
inquiry. Id. at 1182. Jordan and Valensia recognized that four of these factors
to prevail on appeal and receive a new sentence. Therefore, his appeal is not moot.
See United States v. Verdin, 243 F.3d 1174, 1177–79 (9th Cir. 2001).
2
(i.e., whether the enhanced sentence exceeds the statutory maximum, undermines
the presumption of innocence, rests on a separate offense, or involves a
conspiracy) are usually not relevant, and that the analysis thus typically focuses on
the last two factors (whether the enhancement increases the number of offense
levels by four or less or doubles the initial sentencing guidelines range). Jordan,
256 F.3d at 929; Valensia, 222 F.3d at 1182–83.
a. The Government argues that the disproportionate-impact test applies only
to factual findings underlying sentencing enhancements and not to findings that
determine which guideline’s base offense level to apply. Our memorandum
disposition in United States v. Eretza-Flores, 233 F. App’x 696 (9th Cir. 2007),
addressed the exact question presented here, holding that, “[b]ecause Eretza-
Flores’s intent impacts the base offense level calculation rather than the district
court’s application of a sentencing enhancement, the district court properly applied
a preponderance of the evidence standard rather than a clear and convincing
standard in determining whether to sentence Eretza-Flores under U.S.S.G. § 2A2.2
or § 2A2.4.” Id. at 697. But Eretza-Flores is not precedential, and its reasoning is
difficult to square with our decisions in United States v. Pineda-Doval, 614 F.3d
1019 (9th Cir. 2010), and United States v. Mezas de Jesus, 217 F.3d 638 (9th Cir.
2000). Both of those decisions held that the disproportionate-impact test (and,
ultimately, the clear and convincing evidence standard) applied to factual findings
3
underlying the choice between the guideline for the offense of conviction and a
different guideline cross-referenced therein. See Pineda-Doval, 614 F.3d at 1041
(where defendant was convicted of “transportation of illegal aliens resulting in
death,” and U.S.S.G. § 2L1.1 instructed the court to apply the second-degree
murder guideline in § 2A1.2 if the defendant acted with “malice aforethought,” it
was plain error not to apply the clear and convincing evidence standard to that
“malice aforethought” finding); Mezas de Jesus, 217 F.3d at 639–40 (where
defendant was convicted of being an unlawful alien in possession of a firearm, and
§ 2K2.1 instructed the court to apply the more severe sentencing guideline of any
offense in connection with which the firearm was possessed (even an uncharged
offense), the clear and convincing evidence standard applied to the determination
of whether that latter offense was committed). However, we ultimately do not
need to resolve this issue, because even applying the disproportionate-impact test
here, we conclude that the proper standard of review is preponderance of the
evidence.
b. In examining the choice between § 2A2.4 and § 2A2.2, we conclude that
application of § 2A2.2 here would not result in a disproportionate impact and thus
does not require application of the clear and convincing evidence standard.
As noted earlier, the key factors in applying the disproportionate-impact test
are the fifth and sixth Valensia factors. The fifth factor asks whether the increase
4
in the number of offense levels is four or less. Jordan, 256 F.3d at 928. Here, the
application of § 2A2.2 increases Morales’s offense level by six levels,2 and so this
factor weighs in favor of applying the clear and convincing standard. The sixth
Valensia factor asks whether the length of the enhanced sentence more than
doubles the length of the sentence authorized by the initial sentencing guideline
range. Jordan, 256 F.3d at 928. Here, the range changes from 27–33 months to
51–63 months, and so the length of the sentence is not doubled: the low end of 51
months is not more than double the low end of 27 months, and the high end of 63
months is not more than double the high end of 33 months.3 As a result, the sixth
Valensia factor favors applying the preponderance of the evidence standard. See
United States v. Pike, 473 F.3d 1053, 1058 (9th Cir. 2007).
Examining the totality of the circumstances, we conclude that application of
§ 2A2.2 does not result in a disproportionate impact on Morales’s sentence. In
similar circumstances, we found no disproportionate impact in Pike. See 473 F.3d
2
In Pineda-Doval and Mezas de Jesus, we compared the final offense level after
application of each guidelines section and all other relevant adjustments. Pineda-
Doval, 614 F.3d at 1041; Mezas de Jesus, 217 F.3d at 643. We do the same here.
3
Morales argues that we should not consider the fact that the shift in guidelines
also produces a change in how the acceptance of responsibility factor applies under
§ 3E1.1. However, in previous cases, we have considered the full net change in the
guidelines range when assessing the impact of an enhancement, and we do the
same here. United States v. Valle, 940 F.3d 473, 477 n.4 (9th Cir. 2019); United
States v. Johansson, 249 F.3d 848, 856 (9th Cir. 2001).
5
at 1058–59. Moreover, we explained in Pike that, absent exceptional
circumstances, we have been reluctant to apply the clear and convincing standard
based solely on the fifth Valensia factor. Id.; see also United States v. Felix, 561
F.3d 1036, 1047 (9th Cir. 2009) (“We have imposed the clear and convincing
standard only in exceptional circumstances.” (citing Jordan, 256 F.3d at 929)).
Compared to cases where we have required application of this heightened burden
of proof, this case is not exceptional. See, e.g., United States v. Valle, 940 F.3d
473, 480 (9th Cir. 2019); Pineda-Doval, 614 F.3d at 1041; Jordan, 256 F.3d at
929; Mezas de Jesus, 217 F.3d at 643. The district court properly applied the
preponderance standard.
2. The district court did not clearly err in finding by a preponderance of the
evidence that Morales intended to cause bodily injury to Curtis. United States v.
Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017) (en banc) (standard of review).
While driving 85 miles per hour on a highway, Morales rolled down his window
and threw a chisel at Agent Curtis’s car, even throwing the chisel hard enough that
it smashed Curtis’s passenger-side window and landed in his lap. It is a plausible
explanation, if not the most likely explanation, that Morales intended to cause
bodily injury to Curtis. The district court considered, but ultimately did not credit,
Morales’s claim that he only intended to hit Curtis’s door. Even if the evidence
could have been weighed differently, as Morales contends, that does not render the
6
district court’s finding clearly erroneous. United States v. Reyes, 772 F.3d 1152,
1157 (9th Cir. 2014) (“Under the clearly erroneous standard, so long as the district
court’s view of the evidence is plausible in light of the record viewed in its
entirety, it cannot be clearly erroneous, even if the reviewing court would have
weighed the evidence differently had it sat as the trier of fact.” (citation and
internal quotation marks omitted)).
3. A sentence’s substantive reasonableness is reviewed for an abuse of
discretion. United States v. Stewart, 761 F.3d 993, 999 (9th Cir. 2014). We
consider the totality of the circumstances, including variances from the guidelines.
Id. at 999–1000. Because a guidelines sentence is usually reasonable, a below-
guidelines sentence is even more likely to survive a defendant’s challenge that the
sentence is unreasonable. United States v. Bendtzen, 542 F.3d 722, 729 (9th Cir.
2008). Here, the district court varied downward from the low end of the guidelines
range by 21 months, or more than 40 percent. The sentence of 30 months even
falls within Morales’s proposed guidelines range of 27–33 months. The district
court did not abuse its discretion.
AFFIRMED.
7
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NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 7 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAQER SHIBLI AWWAD, No. 17-72533
Petitioner, Agency No. A076-402-300
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 27, 2020**
San Francisco, California
Before: WALLACE, GRABER, and COLLINS, Circuit Judges.
Saqer Shibli Awwad, who is described in the order under review as “a native
and citizen of the occupied territories, Israel,” petitions for review of the Board of
Immigration Appeals’ (Board) decision affirming an immigration judge’s (IJ) denial
of his applications for asylum, withholding of removal, Convention Against Torture
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
(CAT) protection, and adjustment of status. We have jurisdiction under 8 U.S.C.
§ 1252, and we deny the petition.
Awwad argues that his removal proceedings were invalid and should be
terminated on the ground that his notice to appear (NTA) was defective because it
did not include the date and time of those proceedings. However, we already rejected
this argument in Karingithi v. Whitaker, 913 F.3d 1158, 1160 (9th Cir. 2019).
Awwad next argues that the IJ and the Board improperly denied him relief
under the CAT. We review the “determination that an applicant is not eligible for
relief under the CAT” for substantial evidence, Arteaga v. Mukasey, 511 F.3d 940,
944 (9th Cir. 2007), and will uphold the determination “unless the evidence in the
record compels a contrary conclusion,” Cole v. Holder, 659 F.3d 762, 770 (9th Cir.
2011). Awwad points to no evidence in the record that compels the conclusion that,
if he were removed, “it is more likely than not that [he] would be tortured,” 8 C.F.R.
§ 1208.16(c)(2), “by or at the instigation of or with the consent or acquiescence of a
public official or other person acting in an official capacity,” id. § 1208.18(a)(1).
Although Awwad contends that the Board overlooked the relevant country reports,
he has failed to “overcome the presumption that the [Board] did review the
record.” Fernandez v. Gonzales, 439 F.3d 592, 603 (9th Cir. 2006).
Finally, although Awwad argues that the IJ failed to consider his claim that
the Israeli government would torture him because he is a Palestinian, he failed to
2
exhaust that argument before the Board, and thus, we are without jurisdiction to
consider it. See Szonyi v. Whitaker, 915 F.3d 1228, 1233 (9th Cir. 2019) (“A
petitioner’s failure to raise an argument before the BIA generally constitutes a failure
to exhaust, thus depriving this court of jurisdiction to consider the issue”); see also
8 U.S.C. § 1252(d)(1) (providing jurisdiction over a final order of removal “only if
. . . the alien has exhausted all administrative remedies available to the alien as of
right”).
PETITION DENIED.
3
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