State v. Meadows , 2019 Ohio 4943 ( 2019 )

[Cite as State v. Meadows, 2019-Ohio-4943.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. Craig R. Baldwin, J.
Plaintiff-Appellee : Hon. Earle E. Wise, J.
:
-vs- :
: Case No. 2019CA0019
DANIEL MEADOWS : 2019CA0020
:
Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Mansfield
Municipal Court of Common Pleas, Case
Nos. 2018TRC04641 and 19TRC00293
JUDGMENT: Affirmed in part; reversed in part; vacated
in part and remanded
DATE OF JUDGMENT ENTRY: December 2, 2019
APPEARANCES:
For: Plaintiff-Appellee For: Defendant-Appellant
JOSEPH R. REED JOHN C. O’DONNELL
Assistant Law Director 10 West Newlon Place
City of Mansfield Mansfield, OH 44902
30 North Diamond Street
Mansfield, OH 44902
Richland County, Case No. 2019CA0019 and 2019CA0020 2
Gwin, P.J.
{¶1} Defendant-appellant Daniel Meadows [“Meadows”] appeals his conviction
and sentence after a jury trial in the Mansfield Municipal Court, Richland County, Ohio.
Facts and Procedural History
{¶2} On May 13, 2018, Trooper Robert Warner of the Ohio State Patrol initiated
a stop of a vehicle for driving left of center. Meadows was driving the vehicle. As Trooper
Warner approached and spoke with Meadows, the trooper noticed an odor of alcohol
coming from the vehicle. Upon further questioning, Meadows admitted to having drunk
one beer that evening.
{¶3} Trooper Warner requested Meadows perform the Walk and Turn, One Leg
Stand, and Horizontal Gaze Nystagmus tests. Based on Meadows’s performance on
these tests, Trooper Warner determined that Meadows was under the influence and
placed him under arrest for Operating a Vehicle under the Influence. Meadows
subsequently refused to submit to a breath test after Trooper Warner had read him the
BMV 2255 form. Meadows was charged for OVI “under the influence” in violation of R.C.
4511.19(A)(1)(a) in case number 18 TRC 46411.
{¶4} On January 11, 2019, the state filed a second charge in Case Number 19
TRC 2932 under R.C. 4511.19(A) (2), which provides that when Defendant has a prior
conviction in twenty years and it is a refusal, then the minimum sentence is six days. In
that case, it was alleged that Meadows had a prior OVI in 2005.
1 5th Dist. Richland No. 2019 CA 0019.
2 5th Dist. Richland No. 2019 CA 0020.
Richland County, Case No. 2019CA0019 and 2019CA0020 3
{¶5} Meadows filed a Motion to Dismiss in case number 19 TRC 293 on Speedy
Trial grounds. A hearing was held on January 29, 2019 prior to the Trial. The trial court
overruled the Motion to Dismiss.
{¶6} Trial proceeded and a jury found Meadows guilty on both charges. The trial
court sentenced Meadows on both convictions.
Assignments of Error
{¶7} “I. THE TRIAL COURT ERRED IN OVERRULING
DEFENDANT/APPELLANT' S MOTION TO DISMISS PURSUANT TO ORC §2945.71.
{¶8} “II. DEFENDANT/APPELLANT'S CONVICTION FOR A VIOLATION OF
ORC §4511.19(A)(1) WAS TAINTED BY THE INADMISSIBLE EVIDENCE OF A PRIOR
CONVICTION.
{¶9} “III. THE COURT COMMITTED PLAIN ERROR BY IMPOSING SEPARATE
SENTENCES.
{¶10} “IV. TRIAL COUNSEL WAS INEFFECTIVE IN VIOLATION OF THE SIXTH
AMENDMENT FOR FAILURE TO OBJECT TO THE TRIAL COURT'S SENTENCING ON
THE ALLIED OFFENSES OF SIMILAR IMPORT.”
I.
{¶11} In his First Assignment of Error, Meadows contends that the OVI in Case
number 19 TRC 293 is the same OVI charged in Case Number 18 TRC 4641. Meadows
notes that the only difference between the two cases is that in Case Number 19 TRC 293
the state alleged a prior conviction within 20 years. Therefore, Meadows argues the state
was required to bring him to trial within 90-days of his arrest. Because he was not brought
Richland County, Case No. 2019CA0019 and 2019CA0020 4
to trial within that period of time, Meadows contends the trial court erred in overruling his
motion to dismiss Case Number 19 TRC 293.
STANDARD OF APPELLATE REVIEW.
{¶12} Speedy trial provisions are mandatory and are encompassed within the
Sixth Amendment to the United States Constitution. The availability of a speedy trial to a
person accused of a crime is a fundamental right made obligatory on the states through
the Fourteenth Amendment. State v. Ladd, 56 Ohio St.2d 197, 200, 383 N.E.2d 579(1978). “The statutory speedy trial provisions, R.C. 2945.71 et seq., constitute a rational
effort to enforce the constitutional right to a public speedy trial of an accused charged with
the commission of a felony or a misdemeanor and shall be strictly enforced by the courts
of this state.” State v. Pachay, 64 Ohio St.2d 218, 416 N.E.2d 589 (1980), syllabus.
{¶13} Our review of a trial court’s decision regarding a motion to dismiss based
upon a violation of the speedy trial provisions involves a mixed question of law and fact.
State v. Larkin, 5th Dist. No.2004–CA–103, 2005-Ohio-3122, 2005 WL 1463255, ¶11. As
an appellate court, we must accept as true any facts found by the trial court and supported
by competent, credible evidence. State v. Taylor, 5th Dist. Richland No. 16 CA 17, 2016-
Ohio-5912, 2016 WL 5118653, ¶ 43, citing Larkin, supra. With regard to the legal issues,
however, we apply a de novo standard of review and thus freely review the trial court’s
application of the law to the facts. Id.
{¶14} When reviewing the legal issues presented in a speedy-trial claim, we must
strictly construe the relevant statutes against the state. Brecksville v. Cook, 75 Ohio St.3d
53, 57, 661 N.E.2d 706, 709 (1996); State v. Colon, 5th Dist. Stark No. 09-CA-232, 2010-
Ohio-2326, 2010 WL 2060900, ¶ 12.
Richland County, Case No. 2019CA0019 and 2019CA0020 5
ISSUE FOR APPEAL.
Whether the trial court permissibly extended the trial date beyond the R.C. 2945.71
time prescriptions.
{¶15} A person charged with a first degree misdemeanor shall be brought to trial
within ninety days after the person's arrest or the service of summons.” R.C.
2945.71(B)(2).
{¶16} Meadows did not waive time in either case. Pursuant to R.C. 2945.73, a
person who is not brought to trial within the proscribed time period found in R.C. 2945.71
and R.C. 2945.72 “shall be discharged” and further criminal proceedings based on the
same conduct are barred.
{¶17} A defendant establishes a prima facie case for discharge once he
demonstrates that he has not been brought for trial within the time limits set forth in R.C.
2945.71. State v. Ashbrook, 5th Dist. Licking No. 06 CA 158, 2007-Ohio-4635, 2007 WL
2582869, ¶ 49, citing State v. Butcher, 27 Ohio St.3d 28, 30–31, 500 N.E.2d 1368 (1986).
When an appellant has established he was tried outside speedy-trial time limits, the
burden shifts to the state to show that the time limit was extended under R.C. 2945.72.
Id. at ¶31. If the state fails to produce evidence in rebuttal under R.C. 2945.72, then
discharge pursuant to R.C. 2945.73(B) is required. Id. “When reviewing a speedy-trial
issue, an appellate court must calculate the number of days chargeable to either party
and determine whether the appellant was properly brought to trial within the time limits
set forth in R.C. 2945.71.” State v. Riley, 162 Ohio App.3d 730, 2005-Ohio-4337, 834
N.E.2d 887, ¶ 19 (12th Dist.).
Richland County, Case No. 2019CA0019 and 2019CA0020 6
{¶18} Certain events toll the accumulation of speedy-trial time. R.C. 2945.72
provides for a tolling of the time limitations under certain circumstances,
The time within which an accused must be brought to trial, or, in the
case of felony, to preliminary hearing and trial, may be extended only by the
following:
(A) Any period during which the accused is unavailable for
hearing or trial, by reason of other criminal proceedings against him, within
or outside the state, by reason of his confinement in another state, or by
reason of the pendency of extradition proceedings, provided that the
prosecution exercises reasonable diligence to secure his availability;
(B) Any period during which the accused is mentally
incompetent to stand trial or during which his mental competence to stand
trial is being determined, or any period during which the accused is
physically incapable of standing trial;
(C) Any period of delay necessitated by the accused’s lack of
counsel, provided that such delay is not occasioned by any lack of diligence
in providing counsel to an indigent accused upon his request as required by
law;
(D) Any period of delay occasioned by the neglect or improper
act of the accused;
(E) Any period of delay necessitated by reason of a plea in
bar or abatement, motion, proceeding, or action made or instituted by the
accused;
Richland County, Case No. 2019CA0019 and 2019CA0020 7
(F) Any period of delay necessitated by a removal or change
of venue pursuant to law;
(G) Any period during which trial is stayed pursuant to an
express statutory requirement or pursuant to an order of another court
competent to issue such order;
(H) The period of any continuance granted on the accused’s
own motion, and the period of any reasonable continuance granted other
than upon the accused’s own motion;
(I) Any period during which an appeal filed pursuant to section
2945.67 of the Revised Code is pending.
{¶19} In the case at bar, Meadows confuses waiver with tolling. When a
defendant waives the right to a speedy trial as to an initial charge, such waiver is not
applicable to additional charges arising from the same set of circumstances that are
brought subsequent to the execution of the waiver. State v. Adams, 43 Ohio St.3d 67,
538 N.E.2d 1025, syllabus (1989). However, periods of delay resulting from motions filed
by the defendant in a previous case also apply in a subsequent case in which there are
different charges based on the same underlying facts and circumstances of the previous
case. State v. Blackburn, 118 Ohio St.3d 163, 887 N.E.2d 319, 2008–Ohio–1823,
syllabus; Accord, State v. Hammond, 5th Dist. Knox No. 15CA02, 2015-Ohio-4156, ¶21;
State v. Kasler, 5th Dist. Fairfield No. 12-CA-124, 2013-Ohio-2632, ¶12.
{¶20} Meadows did not file a written waiver of his speedy trial rights in either Case
number 18 TRC 4641 or Case Number 19 TRC 293.
Richland County, Case No. 2019CA0019 and 2019CA0020 8
{¶21} In Case Number 18 TRC 4641, the trial court granted Meadows a
continuance by Judgment Entry filed July 25, 2018. [Docket Number 7]. By Judgment
Entry filed August 24, 2018, the trial court continued the case as a result of Meadows’
jury demand to September 25, 2018. [Docket No. 8]. By Judgment Entry filed September
20, 2018, the trial court granted Meadows’ request to continue and continued the jury trial
until October 23, 2018. [Docket No. 10]. By Judgment Entry filed October 25, 2018, the
trial court continued the jury trial until November 27, 2018. [Docket No. 11]. By Judgment
Entry filed December 11, 2018, the trial court granted Meadows’s motion to continue and
continued the jury trial until January 29, 2019. [Docket No. 13]. Meadows’s jury trial
commenced on January 29, 2019.
{¶22} Meadows does not argue or raise as error that his speedy trial rights were
violated in Case Number 18 TRC 4641. Because each continuance granted in Case
Number 18 TRC 4641 is chargeable against Case Number 19 TRC 293, no violation of
Meadows’ speedy trial rights occurred in Case Number 19 TRC 293.
{¶23} Meadows First Assignment of Error is overruled.
II.
{¶24} In his Second Assignment of Error, Meadows argues that his previous
conviction for OVI that occurred in 2005 was not admissible in the present case. He
contends that he was unfairly prejudiced by the trial court’s admission of his prior
conviction.
STANDARD OF REVIEW.
{¶25} “[A] trial court is vested with broad discretion in determining the admissibility
of evidence in any particular case, so long as such discretion is exercised in line with the
Richland County, Case No. 2019CA0019 and 2019CA0020 9
rules of procedure and evidence.” Rigby v. Lake Cty., 58 Ohio St.3d 269, 271, 569 N.E.2d
1056 (1991). “Ordinarily, we review a trial court’s hearsay rulings for an abuse of
discretion. State v. Hymore, 9 Ohio St.2d 122, 128, 224 N.E.2d 126 (1967). However,
we review de novo evidentiary rulings that implicate the Confrontation Clause. United
States v. Henderson, 626 F.3d 326, 333 (6th Cir. 2010).” State v. McKelton, 148 Ohio
St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶97.
ISSUE FOR APPEAL
Whether the trial court abused its discretion by admitting evidence of Meadows
prior conviction.
{¶26} Evid.R. 404(A) provides that evidence of a person’s character is not
admissible to prove the person acted in conformity with that character. Evid.R. 404(B)
sets forth an exception to the general rule against admitting evidence of a person’s other
bad acts. The Rule states as follows: “Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show that he acted in conformity
therewith. It may, however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.”
{¶27} A prior OVI conviction within 20 years is an element of R.C. 4511.19(A)(2).
State v. Holland, 5th Dist. Stark No. 2011 CA 00104, 2012-Ohio-486, ¶ 19. In State v.
Hoover, the Ohio Supreme Court stated:
It is crucial to note that the refusal to consent to testing is not, itself,
a criminal offense. The activity prohibited under R.C. 4511.19(A)(2) is
operating a motor vehicle while under the influence of drugs or alcohol. A
Richland County, Case No. 2019CA0019 and 2019CA0020 10
person’s refusal to take a chemical test is simply an additional element that
must be proven beyond a reasonable doubt along with the person’s
previous DUI conviction to distinguish the offense from a violation of R.C.
4511.19(A)(1)(a).
123 Ohio St.3d 418, 2009-Ohio-4993, 916 N.E.2d 1056, ¶21 [Emphasis added.] We have
therefore previously found that a trial court did not err in allowing appellee to present
evidence of a defendant’s prior conviction “as such was an element of the offense for
which the State bears the burden of proof.” Holland, supra, 2012-Ohio-486 at ¶ 21; see
also, State v. Leasure, 4th Dist. No. 15CA3484, 2015-Ohio-5327, 43 N.E.3d 477{¶28} The Ohio Supreme Court has held that a trial court abuses its discretion
when it refuses to accept the offer of defense counsel to stipulate to the fact of a prior
conviction for the purpose of establishing the element of an offense that requires proof of
a prior conviction. State v. Creech, 150 Ohio St.3d 540, 2016–Ohio–8440, 84 N.E.3d
981. Thus, if counsel had offered to stipulate to the 2005 conviction, the trial court would
have been required to accept the stipulation. In the case at bar, trial counsel did not
stipulate to the prior conviction. Nor did counsel object when the state attempted to
introduce the prior conviction. (T. at 110).
{¶29} Accordingly, the trial court did not err in admitting evidence of Meadows’s
2005 conviction because it was an element of the crime that the state was required to
prove beyond a reasonable doubt.
{¶30} Meadows’s Second Assignment of Error is overruled.
Richland County, Case No. 2019CA0019 and 2019CA0020 11
III.
{¶31} In his Third Assignment of Error, Meadows argues it was contrary to law for
the trial court to sentence him on each OVI offense because the cases are identical. The
only difference between to the two charges is the addition of a prior conviction that
enhances the penalty. The OVI counts are based upon the same conduct in both cases.
Meadows concedes he did not object.
STANDARD OF APPELLATE REVIEW.
{¶32} Meadows did not object or raise this error in the trial court. In criminal cases
where an objection is not raised at the trial court level, “plain error” is governed by Crim.
R. 52(B), which states, "Plain errors or defects affecting substantial rights may be noticed
although they were not brought to the attention of the court.” An alleged error "does not
constitute a plain error ... unless, but for the error, the outcome of the trial clearly would
have been otherwise.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804(1978), paragraph
two of the syllabus.
{¶33} “[A]n appellate court may, in its discretion, correct an error not raised at trial
only where the appellant demonstrates that (1) there is an error; (2) the error is clear or
obvious, rather than subject to reasonable dispute; (3) the error affected the appellant’s
substantial rights, which in the ordinary case means it affected the outcome of the district
court proceedings; and (4) the error seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” United States v. Marcus, 560 U.S. 258, 262 130 S.Ct.
2159, 176 L.Ed.2d 1012(2010) (internal quotation marks and citations omitted).
{¶34} The defendant bears the burden of demonstrating that a plain error affected
his substantial rights. United States v. Olano, 507 U.S. at 725,734, 113 S.Ct. 1770, 123
Richland County, Case No. 2019CA0019 and 2019CA0020 12
L.Ed.2d 508(1993); State v. Perry, 101 Ohio St.3d 118, 120 802 N.E.2d 643(2004). Even
if the defendant satisfies this burden, an appellate court has discretion to disregard the
error. State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002); State v. Long, 53
Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus; Perry, supra, at
118, 802 N.E.2d at 646.
ISSUE FOR APPEAL.
Whether the trial court’s sentence of Meadows for two OVI cases was error
affecting Meadows’s substantial rights.
{¶35} The state agrees the sentences are clearly contrary to law. The state
notes that the two charges should have been merged for purposes of sentencing and
Meadows should have been sentenced on one of the two charges, as elected by the
prosecution. [Appellee’s Brief at 10].
{¶36} In State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234,
¶ 2, the Ohio Supreme Court held the imposition of separate sentences for allied offenses
of similar import is contrary to law and such sentences are void.
{¶37} There is no dispute that there is only one OVI offense in the case at bar.
The same stop and arrest was asserted in two separate cases. A second case was
commenced only to include the sentence-enhancing element of a prior conviction.
{¶38} The Fifth Amendment to the United States Constitution guarantees that no
person shall “be subject for the same offence to be twice put in jeopardy of life or limb.”
The Ohio Constitution contains a similarly worded guarantee: “No person shall be twice
put in jeopardy for the same offense.” Ohio Constitution, Article I, Section 10.1. The Ohio
Supreme Court has read these provisions to protect against three distinct wrongs: “(1) a
Richland County, Case No. 2019CA0019 and 2019CA0020 13
second prosecution for the same offense after acquittal, (2) a second prosecution for the
same offense after conviction, and (3) multiple punishments for the same offense.” State
v. Gustafson, 76 Ohio St.3d 425, 432, 668 N.E.2d 435 (1996), citing United States v.
Halper, 490 U.S. 435, 440, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989); State v. Soto, Oh.
Sup. No. 2018-0416, 2019-Ohio-4430, ¶12 (Oct. 31, 2019).
{¶39} In the case at bar, Meadows is being punished for the same OVI offense in
18 TRC 4641 and 19 TRC 293. Accordingly, we find plain error in the trial court’s
sentencing Meadows in each case. The trial court should have required that the state
select which case that it wished to proceed upon for sentencing.
{¶40} Meadows’s Third Assignment of Error is sustained.
IV.
{¶41} In his Fourth Assignment of Error, Meadows argues that he received
ineffective assistance of counsel because his trial attorney failed to request that the trial
court merge the two convictions.
STANDARD OF APPELLATE REVIEW.
{¶42} To obtain a reversal of a conviction based on ineffective assistance of
counsel, the defendant must prove (1) that counsel's performance fell below an objective
standard of reasonableness, and (2) that counsel's deficient performance prejudiced the
defendant resulting in an unreliable or fundamentally unfair outcome of the proceeding.
Strickland v. Washington, 466 U.S. 668, 687–688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674,
693(1984). A defendant's failure to satisfy one prong of the Strickland test negates a
court's need to consider the other. Strickland at 697, 104 S.Ct. at 2069, 80 L.Ed.2d at
699; State v. Madrigal, 87 Ohio St.3d 378, 2000-Ohio-448, 721 N.E.2d 52 (2000).
Richland County, Case No. 2019CA0019 and 2019CA0020 14
{¶43} The United States Supreme Court discussed the prejudice prong of the
Strickland test,
With respect to prejudice, a challenger must demonstrate “a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability
is a probability sufficient to undermine confidence in the outcome.” Id., at
694, 104 S.Ct. 2052. It is not enough “to show that the errors had some
conceivable effect on the outcome of the proceeding.” Id., at 693, 104 S.Ct.
2052. Counsel’s errors must be “so serious as to deprive the defendant of
a fair trial, a trial whose result is reliable.” Id., at 687, 104 S.Ct. 2052.
“Surmounting Strickland’s high bar is never an easy task.” Padilla v.
Kentucky, 559 U.S. ––––, ––––, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284(2010). An ineffective-assistance claim can function as a way to escape
rules of waiver and forfeiture and raise issues not presented at trial, and so
the Strickland standard must be applied with scrupulous care, lest “intrusive
post-trial inquiry” threaten the integrity of the very adversary process the
right to counsel is meant to serve. Strickland, 466 U.S., at 689–690, 104
S.Ct. 2052. Even under de novo review, the standard for judging counsel’s
representation is a most deferential one. Unlike a later reviewing court, the
attorney observed the relevant proceedings, knew of materials outside the
record, and interacted with the client, with opposing counsel, and with the
judge. It is “all too tempting” to “second-guess counsel’s assistance after
conviction or adverse sentence.” Id., at 689, 104 S.Ct. 2052; see also Bell
Richland County, Case No. 2019CA0019 and 2019CA0020 15
v. Cone, 535 U.S. 685, 702, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002);
Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180(1993). The question is whether an attorney’s representation amounted to
incompetence under “prevailing professional norms,” not whether it
deviated from best practices or most common custom. Strickland, 466 U.S.,
at 690, 104 S.Ct. 2052.
Harrington v. Richter, 562 U.S. 86, 104-105, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011).
ISSUE FOR APPEAL.
Whether there is a reasonable probability that, but for counsel’s failure to move for
merger of the sentences for the two OVI cases the result of the proceeding would have
been different
{¶44} Because we have found that the trial court’s sentencing of Meadows in each
OVI case was error affecting Meadows’s substantial rights, counsel was ineffective in
failing to raise this issue. See, State v. Carson, 10th Dist. Franklin No. 05AP-13,
2006-Ohio-2440, ¶51 (“this court held that where the failure to object does not
constitute plain error, the issue cannot be reversed by claiming ineffective assistance
of counsel.”); State v. Koogler, 10th Dist. Franklin No. 84AP-221, 1984WL5883(Sept.
6, 1984)(“the failure to object does not automatically become an ineffective
assistance of counsel unless the failure to object rises to the level of plain error. See
Jones v. Jago (1983), 701 F.2d 45, 47-48; United States v. DeWolf (1982), 696 F.2d
1, 4. As pointed out in DeWolf, to allow that claim upon failure to object would allow
a defendant to whipsaw the state by claiming inadequate representation for failure to
note objections not saved by plain error.
Richland County, Case No. 2019CA0019 and 2019CA0020 16
{¶45} Meadows’s Fourth Assignment of Error is sustained.
CONCLUSION.
{¶46} The judgment of the Mansfield Municipal Court, Richland County, Ohio is
affirmed in part, reversed in part and vacated in part. Section 3(B) (2), Article IV of the
Ohio Constitution gives an appellate court the power to affirm, reverse, or modify the
judgment of an inferior court. Meadows’s sentence in Case No. 18 TRC 293 is vacated;
Meadows’s sentence in 19 TRC 4641 is vacated. This case is remanded to the trial court
for further proceedings in accordance with this Opinion and the law.
By Gwin, P.J.,
Baldwin, J., and
Wise, Earle E., J., concur