In re J.C.E. , 2016 Ohio 7843 ( 2016 )

[Cite as In re J.C.E., 2016-Ohio-7843.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY, OHIO
IN THE MATTER OF: J.C.E., : OPINION
DELINQUENT CHILD.
:
CASE NO. 2016-G-0062
:
:
Appeal from the Geauga County Court of Common Pleas, Juvenile Division, Case No.
15 JD 000205.
Judgment: Reversed and remanded.
James R. Flaiz, Geauga County Prosecutor, and Melissa J. Lee, Assistant Prosecutor,
Courthouse Annex, 231 Main Street, Suite 3A, Chardon, OH 44024 (For Appellee-
State of Ohio).
Jay F. Crook, Shryock, Crook & Associates, LLP, 30601 Euclid Avenue, Wickliffe, OH
44092 (For Appellant-J.C.E.).
CYNTHIA WESTCOTT RICE, P.J.
{¶1} Adjudicated delinquent child, appellant, J.C.E., appeals the judgment of
the Geauga County Court of Common Pleas, Juvenile Division, in which the court, in
imposing appellant’s previously-suspended placement in the Department of Youth
Services (“DYS”), did not give appellant credit for the time he served in a community
corrections facility (“CCF”). At issue is whether the trial court erred in not giving
appellant such credit. For the reasons that follow, we reverse and remand.
{¶2} On June 8, 2015, appellant was charged in a nine-count complaint with
four counts of burglary, two counts of petty theft, theft of drugs, criminal trespass, and
possession of marijuana. Appellant pled not true.
{¶3} On June 18, 2015, appellant pled true to two counts of burglary and
criminal trespass as charged in the complaint. The court committed appellant to DYS
for a term consisting of a minimum of one year and a maximum of up to appellant
turning 21 on the two burglary counts, each to be served consecutively to the other, for
a period of a minimum of two years to a maximum of appellant turning 21. However,
the court suspended appellant’s commitment on the condition that he successfully
complete a CCF program.
{¶4} On July 13, 2015, appellant was accepted into the Juvenile Residential
Center of Northwest Ohio (“JRC”), a CCF facility. A “community corrections facility” is
“a county or multicounty rehabilitation center for felony delinquents who have been
committed to the department of youth services and diverted from care and custody in an
institution and placed in the rehabilitation center.” R.C. 5139.01(A)(14).
{¶5} On February 5, 2016, the court’s Intake Officer filed a motion to impose
suspended detention/DYS placement. On February 9, 2016, the court held an impose
hearing, at which appellant stipulated he had failed to successfully complete the CCF
program as ordered by the court. At that hearing, the court placed appellant into DYS to
serve his previously-suspended commitment of two years on the minimum side to the
age of 21 on the maximum, “subject to whatever credit is dually due [him] under Ohio
law.” On February 12, 2016, the court entered judgment confirming the terms of its
commitment, but added that, pursuant to In re Thomas, 100 Ohio St.3d 89, 2003-Ohio-
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5162, appellant was given no credit for the time served at JRC. However, the court
gave appellant credit for 40 days of placement in the Portage-Geauga Juvenile
Detention Center. On February 19, 2016, the court entered a nunc pro tunc judgment in
which it repeated the provisions of its February 12, 2016 entry.
{¶6} Appellant appeals the court’s judgment, asserting the following for his sole
assignment of error:
{¶7} “The trial court committed [reversible] error in denying J.C.E.’s requested
credit for the time served at a C.C.F. based upon the holding of In re Thomas (2003),
100 Ohio St.3d 89.”
{¶8} As a preliminary matter, the state argues we should apply the plain error
standard of review because appellant never objected to the calculation of his
confinement credit at the impose hearing or after the hearing. However, at the impose
hearing, the court stated that appellant’s placement in DYS was “subject to whatever
credit is dually due [him] under Ohio law.” Thus, appellant had no reason to believe he
was not going to be given credit for his time served at JRC and he was not on notice
that the court was not going to give him credit for that period. Thus, there was no
reason for appellant to object at the hearing. Further, once the court expressly stated in
its February 12, 2016 judgment entry that appellant was not given such credit, that was
a final judgment, and it would have been too late to object. Hence, appellant did not
waive the issue and the plain error standard does not apply.
{¶9} Generally, an appellate court reviews the trial court’s calculation of
confinement credit for an abuse of discretion. In re J.K.S., 8th Dist. Cuyahoga Nos.
101967 and 101968, 2015-Ohio-1312, ¶8, citing In re. H.V., 138 Ohio St.3d 408, 2014-
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Ohio-812, ¶8. However, where the facts are not in dispute and the appellate court is
thus faced with the purely legal question of whether the juvenile court correctly applied
the law to the facts in determining whether time spent at a CFF constitutes
“confinement,” such question is a matter of law that we review de novo. In re T.W., 1st
Dist. Hamilton No. C-150327, 2016-Ohio-3131, ¶4. Thus, we review de novo the issue
of whether appellant was entitled to credit against his DYS commitment for his stay at
JRC.
{¶10} Appellant argues the trial court erred in denying him credit for the time he
served at JRC. In support, he argues the trial court based its decision on In re Thomas,
supra, which has since been effectively superseded by statute.
{¶11} Former R.C. 2152.18(B), regarding credit for time served for juveniles,
provided in pertinent part:
{¶12} When a juvenile court commits a delinquent child to the custody of
the department of youth services, * * * the court shall state in the
order of commitment the total number of days that the child has been
held, as of the date of the issuance of the order, in detention in
connection with the delinquent child complaint upon which the order
of commitment is based. The department shall reduce the minimum
period of institutionalization * * * by both the total number of days that
the child has been so held in detention as stated by the court in the
order of commitment and the total number of any additional days that
the child has been held in detention subsequent to the order of
commitment but prior to the transfer of physical custody of the child
to the department. (Emphasis added.)
{¶13} In In re Thomas, supra, decided in 2003, the Supreme Court of Ohio
considered a case in which two juveniles sought credit for the time spent at a
rehabilitation and treatment center before their commitment to DYS. In construing the
former version of R.C. 2152.18(B), the Supreme Court in In re Thomas held:
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{¶14} The threshold issue is whether the children here were in
“detention,” as that term is used in [former R.C. 2152.18(B)],
before their placement at DYS. R.C. 2151.011(B)(14) * * * defines
“detention” as “the temporary care of children pending court
adjudication or disposition * * * in a public or private facility
designed to physically restrict the movement and activities of
children.” While appellants argue that the control exercised over
them at the treatment and rehabilitation facilities constituted
detention under the definition in R.C. 2151.011(B)(13), we
disagree. The nature of the facility and the amount of control it
exercises over its inhabitants are not the sole determinants of
whether “detention” has occurred. Instead, the key here is the
word “pending.” Read together, [former R.C. 2152.18(B)] and
2151.011(B)(14) grant credit only for the days that a juvenile is
restricted to a facility pending adjudication or disposition of the
delinquency complaint * * *. (Emphasis added.) In re Thomas,
supra, at ¶12.
{¶15} Thus, under the former version of [R.C. 2152.18(B)], a youth committed to
a DYS facility could only receive credit for days the youth was held in “detention.”
Further, R.C. 2151.011(B)(14) defines detention as “the temporary care of children
pending court adjudication or disposition of the delinquency complaint * * * in a public or
private facility designed to physically restrict the movement and activities of children.”
As a result, a juvenile could only be given credit for time spent in the temporary care of
a facility designed to restrict the movement of children pending court adjudication or
disposition of the delinquency complaint.
{¶16} In 2012, the language in R.C. 2152.18(B) was amended to remove the
phrase “held in detention,” and to replace it with the word “confined.” The revision
broadened the credit to which a juvenile is entitled toward his institutionalization at DYS
by making entitlement to credit dependent on whether the juvenile was simply confined
in connection with his complaint, as opposed to being in detention and thus restricted to
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a facility pending adjudication or disposition of the delinquency complaint. Current R.C.
2152.18(B) provides as follows (the revisions are italicized):
{¶17} When a juvenile court commits a delinquent child to the custody of
the department of youth services * * *, the court shall state in the
order of commitment the total number of days that the child has been
confined in connection with the delinquent child complaint upon
which the order of commitment is based. The court shall not include
days that the child has been under electronic monitoring or house
arrest or days that the child has been confined in a halfway house.
The department shall reduce the minimum period of
institutionalization that was ordered by both the total number of days
that the child has been so confined as stated by the court in the order
of commitment and the total number of any additional days that the
child has been confined subsequent to the order of commitment but
prior to the transfer of physical custody of the child to the department.
(Emphasis added.)
{¶18} Thus, under the current version of R.C. 2152.18(B), whether a child is
entitled to credit for time served is no longer dependent on whether the child was
detained pending court adjudication or disposition of the delinquency complaint, but,
rather, whether the time spent in a CCF qualifies as confinement. While R.C. Chapter
2152 does not define “confinement,” R.C. 2152.18(B) provides some examples of what
is not confinement: electronic monitoring, house arrest, or time spent in a halfway
house.
{¶19} The dispute in this appeal centers on the meaning of the term
“confinement.” Appellant argues this court should not follow the definition adopted by In
re Thomas because the statutory definition of “detention” relied on in In re Thomas is no
longer relevant in determining credit for time served because R.C. 2152.18(B) no longer
defines credit for time served in terms of detention. Rather, appellant argues this court,
like other Ohio Appellate Districts, in determining such credit, should follow the
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interpretation of “confinement” announced by the Supreme Court of Ohio in State v.
Napier, 93 Ohio St.3d 646 (2001).
{¶20} In the adult criminal context, the Supreme Court of Ohio in Napier held
that entry into a community-based corrections facility (“CBCF”) (the adult counterpart of
a CCF) constitutes confinement. Napier at 647.
{¶21} In Napier, the Ohio Supreme Court addressed whether time spent in a
CBCF should be credited against prison time under R.C. 2967.191 since inmates have
more opportunity to leave the facility than those confined in prison. In Napier, the
defendant had pled guilty to felony drug possession and had been sentenced to three
years of community-control sanctions, including treatment at a residential CBCF. After
the defendant had violated his community-control sanctions, the trial court imposed an
eight-month prison sentence, and the defendant claimed he was entitled to credit for
110 days spent at the CBCF. The trial court granted the defendant credit for only 30
days at the facility when he had been in “lockdown,” and not permitted to leave the
facility.
{¶22} The Supreme Court in Napier reversed the trial court’s decision, holding
that the defendant was entitled to credit for all the time he had spent at the facility. Id. at
648. In reaching this conclusion, the Supreme Court, in considering whether admission
to a CBCF was “confinement,” looked to the definition of a CBCF, which “must be a
secure facility that contains lockups and other measures sufficient to ensure the safety
of the surrounding community.” Napier at 648. The Supreme Court looked at the
qualities of the facility, as well as the specific nature of the defendant’s experience at
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the facility to determine whether he had been sufficiently restricted so as to constitute
“confinement.” Id.
{¶23} Thus, in Napier, the Supreme Court held that because a CBCF (1) is
secured in such a way to prevent offenders from entering the community without
approval of the facility’s managers, and (2) the facility exercises control over the ability
of the offender to leave the facility, all time served in a CBCF constitutes confinement
for purposes of credit for time served for adults, even though the offender may be
permitted to leave to participate in employment and other activities outside the CBCF.
Id. at 648.
{¶24} Following the Supreme Court’s decision in Napier, the First, Third, Sixth,
and Eighth Appellate Districts have adopted the interpretation of “confinement” set forth
in Napier and applied it in the juvenile context. In re D.P., 1st Dist. Hamilton No. C-
140158, 2014-Ohio-5414, ¶18 (First District); In re D.P., 3d Dist. Auglaize Nos. 2-15-13
and 2-15-14, 2016-Ohio-747, ¶20; In re K.A., 6th Dist. Lucas No. L-12-1334, 2013-Ohio-
3847, ¶5; In re J.K.S., supra, at ¶12 (Eighth District).
{¶25} In In re K.A, supra, the first case to apply Napier’s interpretation of
“confinement” in the juvenile context, the Sixth District held that by replacing the phrase
“held in detention” with the word “confined,” the General Assembly “broaden[ed] the
circumstances under which a youth will receive credit against his or her term of
institutionalization.” (Emphasis added.) In re K.A., at ¶5. The Sixth District held that
K.A. was entitled to credit for the time he spent in treatment at the Youth Treatment
Center, a CCF. Id. at ¶1, 2, 23.
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{¶26} In In re J.K.S., supra, the Eighth District cited In re D.P., 2014-Ohio-5414,
and In re K.A., supra, in holding that the trial court abused its discretion in failing to
credit J.K.S. with days he spent at a residential, “locked intensive treatment unit.” In re
J.K.S., supra, at ¶10-12. The Eighth District noted that in both In re J.K.S. and In re
K.A., supra, “juveniles were housed in secure residential facilities as a condition of
community control and were later committed to the custody of a juvenile detention
center after violating conditions of community control. The residential treatment facilities
constituted confinement under the Napier standard.” In re J.K.S., supra, at ¶12. The
Eighth District stated: “A plain reading of R.C. 2152.18(B) indicates the court should
give credit for any time the juvenile ‘has been confined in connection with the delinquent
child complaint upon which the order of commitment is based.’” In re J.K.S., supra, at
¶13.
{¶27} Most recently, the Third District in In re D.P., 2016-Ohio-747, adopted the
interpretation of “confinement” set forth in Napier and held that the juvenile’s time spent
in a CCF constituted “confinement” under Napier. In doing so, the Third District stated:
{¶28} We recognize * * * that Napier “is an adult case” and that “[a]dults are
treated differently than juveniles.” * * * We also recognize that the
statute is arguably unartfully worded by not defining “confined” and
by stating that a delinquent child receives credit for “days that the
child has been confined in connection with the delinquent child
complaint upon which the order of commitment is based,” except,
among others, “days that the child has been confined in a halfway
house.” (Emphasis omitted.) R.C. 2152.18(B).
{¶29} Nevertheless, just as in an adult case, a court can “‘review the nature
of the program to determine whether the restrictions on the
participants are so stringent as to constitute ‘confinement’ as
contemplated by the legislature.’” State v. Bondurant, 3d Dist. Marion
No. 9-08-17, 2008-Ohio-5319, ¶13-15, quoting State v. Osborn, 3d
Dist. Marion No. 9-05-35, 2006-Ohio-1890, ¶21 and citing Napier,
supra.” In its judgment entry, the trial court stated, “In every aspect of
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a child’s life, they [sic] are not free to come and go as they please.
Are the juvenile courts to give credit for any time a child is not free to
come and go as they [sic] please? * * * While a juvenile is subject to
the rules of his or her household and school, some of which may be
restrictive, these are not restrictions “‘so stringent as to constitute
‘confinement’ as contemplated by the legislature.’” (Emphasis
omitted.) Bondurant at ¶15, quoting Osborn at ¶21. In other words,
the restrictions a juvenile may experience at home or at school * * *
are not the sort of stringent restrictions that amount to what it means
to be “confined” under R.C. 2152.18(B). The secure facilities
described in Napier, In re K.A., and In re J.K.S., for example, are a
far cry from a home or a school. For the reasons above, we adopt the
interpretation of “confinement” set forth in Napier. In re D.P., 2016-
Ohio-747, at ¶21-22 (Third District).
{¶30} In light of the Third District’s recent adoption of the Napier standard in
2016 in In re D.P., 2016-Ohio-747, the state’s argument that the Third District continues
to rely on In re Thomas is inaccurate and confusing. In support, the state relies on In re
N.G., 3d Dist. Hancock No. 5-13-35, 2014-Ohio-3190, decided by the Third District two
years before it decided In re D.P., 2016-Ohio-747. In any event, the Third District in In
re N.G. expressly stated that the issue of whether a juvenile is entitled to credit for time
served at a CCF toward his DYS commitment was not before the court. Id. at ¶11.
Rather, the court in In re N.G. cited Thomas to support its holding that “time spent in a
CCF was distinct from the DYS commitment” and “does not equate to being admitted to
a DYS facility.” Id. Thus, despite the Third District’s earlier decision in In re N.G., the
Third District in In re D.P., 2016-Ohio-747, adopted Napier’s interpretation of
“confinement.”
{¶31} Thus, all four Ohio Appellate Districts that have addressed the issue,
including the Third, have adopted Napier’s interpretation of “confinement.” We agree
with the holdings of our fellow Districts and likewise adopt the interpretation of the term
“confinement” as set forth in Napier, supra.
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{¶32} The state attempts to distinguish Napier by arguing CCFs are not
analogous to CBCFs (for adult criminals) because, unlike CBCFs, CCFs are not secure
facilities. However, this is not true. Ohio Adm.Code 5139-36-01(K) provides,
“‘Community Corrections Facility’ means a facility * * * in which juveniles are committed
by the court to participate in programs and services for a set period of time, established
by the court, while under the secure care and supervision twenty-four hours a day.”
(Emphasis added.)
{¶33} The state argues that a CCF is part of DYS so that when appellant was
placed in JRC, he was in DYS’ custody and not entitled to any additional credit.
Significantly, the state does not cite any authority in support of this argument.
Moreover, this argument is defeated by In re N.G., supra, in which the Third District held
that time spent in a CCF is distinct from the DYS commitment. Id. at ¶11. Thus, the
time spent in a CCF may be counted against the juvenile’s time in DYS.
{¶34} Further, the state’s efforts to distinguish two of the foregoing appellate
cases that adopted Napier are unavailing. Appellant argues that the First District’s
holding in In re D.P. 2014-Ohio-5414, is inapposite because the time spent by D.P. in
the CCF in that case was prior to the order committing the child to DYS, while
appellant’s stay at JRC occurred after the commitment in DYS. However, this is
irrelevant because, according to the current version of R.C. 2152.18(B), credit for time
served is based on the time the juvenile is confined in connection with the delinquent
child complaint, not whether the placement in CFF is before or after the commitment to
DYS. Further, R.C. 2152.18(B) provides a juvenile is entitled to credit for the time he is
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confined before the order of commitment and after the order, but before transfer of
physical custody to DYS.
{¶35} In addition, appellant’s attempt to distinguish In re T.W., supra, from the
instant case based on the fact that the CCF in In re T.W. was a different CCF than the
one involved in the present case (JRC) is unavailing because both treatment facilities
were CCFs and appellant has failed to cite any evidence in the record demonstrating
that the security procedures in the CCF involved in In re T.W. are different from those in
place at JRC.
{¶36} The state also argues that this court should continue to apply Thomas,
although the statute on which it is based has been effectively superseded by
amendment, because children should not be treated as adults and in fact are entitled to
more protections. However, this argument is disingenuous because, under the prior
version of R.C. 2152.18(B) and Thomas, children were given less rights than adults as
children were not given credit for their stay at treatment centers, while adult criminals
under Napier were given such credit for their stays in CBCFs. It appears that the whole
point of current R.C. 2152.18(B) and those appellate cases adopting the definition of
“confinement” in Napier was to give children the same credit for time served in
treatment facilities that adult criminals enjoy.
{¶37} Further, we must consider whether appellant was in confinement for
purposes of R.C. 2152.18(B). Appellant argues that on remand, this court should order
the trial court to credit appellant for all time served at JRC. In contrast, the state argues
that if we decide to adopt Napier instead of Thomas, we should remand for the trial
court to determine whether appellant’s stay at JRC constituted confinement pursuant to
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the standard set forth in Napier. We agree with the state’s argument; however, based
on the authority cited below, we do not agree with the state’s further argument that on
remand, appellant “must show he was in a locked facility, with gates, that was
monitored at all times.” Moreover, as discussed below, the fact that appellant was
permitted off-site family visits beginning in October 2015 is not determinative of whether
he was “confined” at JRC.
{¶38} In applying Napier in an adult context, this court in Drummond v. Wilson,
11th Dist. Trumbull No. 2002-T-0128, 2002-Ohio-5366, citing State v. Edwards, 9th Dist.
Summit No. 20840, 2002 Ohio App. LEXIS 1940 (Apr. 24, 2002), stated:
{¶39} [A] criminal defendant is entitled to credit under the Napier syllabus
for “all time served” in a treatment facility only when it is shown that:
(1) the facility is a community-based correctional facility under R.C.
2301.52(A); and (2) the restraint on the defendant’s liberties rose to
the same level of restraint which the Napier defendant had to
endure. The Edwards court further concluded that the defendant
had the burden of proving that the extent of the restraint rose to the
Napier level. (Emphasis added.) Drummond, supra, at ¶12.
{¶40} Further, the First District in In re D.P., 2014-Ohio-5414, stated:
{¶41} [W]e cannot agree with the state that juveniles are never entitled to
credit for “confinement” unless they are in a lockdown facility.
Rather, juvenile courts must review the nature of the facility, to see
if it is a secure facility with measures sufficient to ensure the safety
of the surrounding community. Napier at 648. They must also
review the nature of the restrictions on the juvenile at the facility to
determine if the juvenile was “free to come and go as he wished” or
if he was ‘subject to the control of the staff regarding personal
liberties’ as contemplated by Napier. In re D.P., 2014-Ohio-5414,
¶18.
{¶42} Based on our review of the record, we are unable to determine whether
appellant’s time at JRC constitutes confinement for purposes of R.C. 2152.18(B).
Appellant has not referenced any evidence in the record related to the nature of JRC or
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the conditions affecting appellant’s personal liberties during his time there. While the
trial court stated on the record that community correction facilities “are facilities that you
are locked up in a secured facility, you sleep in a locked room like a cell-type room,” the
court did not make any findings relative to the nature of JRC or appellant’s time there.
{¶43} The following remand instructions of the First District in In re D.P., 2014-
Ohio-5414, are pertinent:
{¶44} Without further evidence as to the nature of Hillcrest and the nature
of the staff’s control regarding D.P.’s personal liberties, we are
unable to determine the severity of the restrictions placed upon
D.P.’s freedom and, thus, we cannot conduct a meaningful review
of whether D.P. was “confined” as that term has been defined by
the Supreme Court in Napier so as to be entitled to credit for time
spent at Hillcrest School. See State v. Ventra, 11th Dist. Geauga
No. 2010-G-2968, 2011-Ohio-156, ¶ 19-20. We, therefore, sustain
D.P.’s assignment of error to the extent that the record does not
contain enough evidence to support the trial court’s judgment, and
the cause must be remanded so that the record can be developed
as to the nature of the Hillcrest School and the staff’s control
regarding D.P’s personal liberties. In re D.P., 2014-Ohio-5414, at
¶20.
{¶45} We therefore hold the trial court erred in denying appellant credit for his
stay at JRC pursuant to In re Thomas, supra. Since the Supreme Court’s interpretation
of credit for time served by juvenile offenders in In re Thomas was based on a statute
that has since been amended, In re Thomas is no longer controlling and has been
superseded by R.C. 2152.18(B), as amended in 2012.
{¶46} This matter is remanded for the trial court to take evidence and make
findings concerning the nature of JRC’s security procedures and the staff's control
regarding appellant's personal liberties. The trial court shall also determine whether
appellant was “confined” pursuant to R.C. 2152.18(B), as that term is interpreted by the
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Ohio Supreme Court in Napier, supra, and, if so, the number of days appellant was
confined.
{¶47} In determining whether appellant was “confined” at JRC for purposes of
determining credit for time served, the trial court shall consider whether JRC is a secure
facility that contains lockups and other measures to ensure the safety of the surrounding
community; whether juveniles are secured there in such a way as to prevent them from
entering the community without the approval of JRC’s managers; and whether the
juveniles housed at JRC are under secure care and supervision. The court shall also
consider the nature of the restrictions on appellant to determine if he was free to come
and go as he wished or if he was subject to the control of the staff regarding his
personal liberties as contemplated by Napier.
{¶48} The state argues the fact that appellant was allowed off-ground visits
makes his stay at JRC seem less “confining.” The record reflects that on October 8,
2015, the trial court granted JRC’s request to allow appellant to have off-ground visits
with his family, the length of such visits to be determined by JRC and the Geauga
County Juvenile Probation Department. The court ordered that a parent of appellant
shall remain with him at all times during the off-ground visit and report any rule
violations by appellant to JRC staff immediately, and that failure to do so may result in
further charges against appellant and/or his parent. Thus, appellant’s off-ground visits
were subject to court order. In Napier, supra, the Ohio Supreme Court held that the
time served in a CBCF constitutes “confinement,” even though the offender may be
permitted to leave to participate in employment and other activities outside the CBCF.
Moreover, in In re D.P., 2016-Ohio-747, the Third District held that temporary releases
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for such activities as a funeral pursuant to court order amounted to confinement. Id. at
¶27. On remand, the trial court shall also determine whether appellant’s off-grounds
visits constituted confinement.
{¶49} For the reasons stated in the opinion of this court, it is the judgment and
order of this court that the judgment of the Geauga County Court of Common Pleas,
Juvenile Division, is reversed, and this matter is remanded to the trial court for further
proceedings consistent with the opinion.
TIMOTHY P. CANNON, J.,
COLLEEN MARY O’TOOLE, J.,
concur.
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