Com. v. Giannantonio, J. ( 2015 )


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  • J-A02031-15
    
    2015 Pa. Super. 89
    COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    JAMES GIANNANTONIO
    Appellant                    No. 1669 EDA 2014
    Appeal from the Order May 7, 2014
    In the Court of Common Pleas of Delaware County
    Criminal Division at No(s): CP-23-MD-000712-2013
    BEFORE: PANELLA, J., LAZARUS, J., and WECHT, J.
    OPINION BY PANELLA, J.                                    FILED APRIL 20, 2015
    In   June   2005,     Appellant,    James   Giannantonio,   entered   into   a
    negotiated plea agreement in federal court to child pornography charges,
    and served a term of incarceration. Because of his conviction, Giannantonio
    was required to comply with applicable state laws regarding sex offender
    registration after his release from prison. At the time of his release in 2007,
    Pennsylvania’s Megan’s Law III required Giannantonio to register with the
    Pennsylvania State Police (“PSP”) for ten years.              In 2012, however,
    Pennsylvania’s Sex Offender Registration and Notification Act (“SORNA”)1
    ____________________________________________
    1
    SORNA, codified at 42 Pa.C.S.A. §§ 9799.10-9799.41, became effective on
    December 20, 2012. In this Opinion, we refer to this statute as “SORNA.”
    Pennsylvania courts have also referred to the current statute as “Megan’s
    Law IV,” “Act 111 of 2011,” “Adam Walsh Child Protection and Safety Act,”
    and the “Adam Walsh Act.” See, e.g., Commonwealth v. M.W., 
    39 A.3d 958
    , 968 (Pa. 2012) (Baer, J., concurring); Coppolino v. Noonan, 102
    (Footnote Continued Next Page)
    J-A02031-15
    became effective and Giannantonio’s required registration period changed
    from ten years to fifteen years. He commenced the instant action in June
    2013, requesting that the trial court enter an order barring application of
    SORNA to his case, arguing that it was not in effect at the time of his
    release. The trial court denied his petition and this timely appeal followed.
    Giannantonio raises two primary issues on appeal. First, whether an
    implied contract existed between Giannantonio and the Commonwealth as a
    result of his federal plea agreement that bars the application of SORNA to
    his conviction; and, second, whether SORNA, as applied to Giannantonio,
    violates the ex post facto provision of the United States Constitution.2 We
    affirm.
    Our legal discussion necessitates a more detailed procedural history of
    the case and a review of the relevant provisions of SORNA. In June 2005,
    with the assistance of counsel, Giannantonio pled guilty in federal court to
    one count of the crime of possession of child pornography, 18 U.S.C.A. §
    _______________________
    (Footnote Continued)
    A.3d 1254 (Pa. Cmwlth. 2014); Commonwealth v. Partee, 
    86 A.3d 245
    ,
    246 (Pa. Super. 2014); Commonwealth v. Hainesworth, 
    82 A.3d 444
    ,
    445 (Pa. Super. 2013), appeal denied, 
    95 A.3d 276
    (Pa. 2014).
    2
    Giannantonio makes no argument with regard to Article I, Section 17 of the
    Pennsylvania Constitution, which also prohibits ex post facto laws. This is of
    no significance because our Supreme Court has previously declined to hold
    that this provision of the Pennsylvania Constitution imposes any greater
    protections than Article I, Section 10 of the United States Constitution. See
    Commonwealth v. Gaffney, 
    733 A.2d 616
    , 622 (Pa. 1999).
    -2-
    J-A02031-15
    2252A(a)(4)(b). The United States District Court subsequently sentenced
    Giannantonio to incarceration in a federal penitentiary for a period of one
    year and one day, to be followed by three years of supervised release. The
    federal court’s judgment order included a standard list of five requirements
    for    supervised    release,    each    followed   by   a   box   to   be   checked.
    Giannantonio’s judgment order contained the following standard paragraph,
    which was not checked:
    The defendant shall register with the state sex offender
    registration agency in the state where the defendant resides,
    works, or is a student, as directed by the probation officer.
    (Check here).
    
    Id., at 3.
    The federal order is devoid of any reference to an agreement with
    either federal prosecutors or the Commonwealth of Pennsylvania regarding
    state registration following release from prison.
    After his release from prison in May 2007, Giannantonio re-established
    residency in Pennsylvania. On June 20, 2007, he began registering with the
    PSP as required by Megan’s Law III, then in effect.3 The relevant provisions
    of Megan’s Law III required Giannantonio to register annually as a sex-
    offender for ten years.4
    ____________________________________________
    3
    42 Pa.C.S.A. § 9795.2(b)(4) (expired).
    4
    42 Pa.C.S.A. § 9795.2(b)(4)(iii) (expired).
    -3-
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    The Pennsylvania General Assembly passed SORNA in 2011 and the
    governor signed it into law on December 20, 2011. The passage of SORNA
    brought Pennsylvania into compliance with the Adam Walsh Child Protection
    and Safety Act of 2006, 42 U.S.C. §§ 16901-16991, and provides a means
    for the public and law enforcement officials to obtain information on sex
    offenders. SORNA includes legislative findings and a declaration of policy. It
    explains that the “Commonwealth’s laws regarding registration of sexual
    offenders need to be strengthened.”     42 Pa.C.S.A. § 9799.11(a)(2).     “The
    Adam Walsh Child Protection and Safety Act of 2006 provides a mechanism
    for the Commonwealth to increase its regulation of sexual offenders in a
    manner which is nonpunitive but offers an increased measure of protection
    to the citizens of this Commonwealth.” 
    Id. SORNA expanded
    the list of offenses requiring registration, and
    grouped offenders into one of three “Tiers,” depending on the severity of the
    offense. See 42 Pa.C.S.A. § 9799.14(a)-(d). The legislation changed the
    mandatory registration periods for adults to fifteen years, twenty-five years,
    and lifetime, depending upon the offense and Tier classification.      See 42
    Pa.C.S.A. § 9799.15(a). Offenders classified in Tier I are required to register
    in person annually with the PSP, see 42 Pa.C.S.A. § 9799.15(e)(1), and
    provide the information listed in 42 Pa.C.S.A. § 9799.16(b).          When it
    became effective, SORNA applied to individuals already required to register,
    and anyone who was already subject to registration was to “receive credit
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    for any time registered with the PSP prior to December 20, 2012.” 42
    Pa.C.S.A. § 9799.10(4).    See also 42 Pa.C.S.A. § 9799.15(a.1)(1).        The
    prior registration requirements of Megan’s Law III expired when SORNA
    became effective on December 20, 2012.
    On December 3, 2012, because Giannantonio was already subject to
    registration, the PSP notified him of the applicable changes and, pursuant to
    SORNA, classified him as a Tier I sex-offender.         See 42 Pa.C.S.A. §
    9799.14(b)(13).     This classification requires Giannantonio to register
    annually for a period of fifteen years, see 42 Pa.C.S.A. § 9799.15(a)(1) and
    (e), thus changing his registration end date from June 2017 to June 2022.
    In response to the notification, Giannantonio filed, through counsel, a
    “Petition to Enforce Implied Contract and/or For Writ of Habeas Corpus
    and/or For Exemption from Applicability to Continue to Re-Register Under
    Pennsylvania’s ‘New’ Megan’s Law as a 15-year Registrant,” in the Court of
    Common Pleas of Delaware County.        The petition requested an exemption
    from SORNA’s registration requirements. The trial court held a hearing on
    January 7, 2014, during which Giannantonio testified that he had pled guilty
    in exchange for a term of one and a half years’ incarceration followed by
    three years’ supervision. He acknowledged that he had been aware when he
    entered the plea that upon his release from prison, he would be required to
    register as a sex offender pursuant to the applicable law then in effect in the
    state in which he chose to reside. See Notes of Testimony Hearing (“N.T.”),
    -5-
    J-A02031-15
    1/7/14, at 7-8. Giannantonio was the sole witness to testify at the hearing.
    Significantly, he did not offer into evidence a written plea agreement, the
    notes of testimony from the federal proceedings, or evidence from the
    attorney who had assisted him in negotiating the federal plea. See Trial
    Court Opinion, dated 7/14/14, at 14.      The trial court denied the petition.
    This timely appeal followed.
    We will reverse a denial or grant of a habeas corpus petition only for a
    “manifest abuse of discretion.” Commonwealth v. Miller, 
    787 A.2d 1036
    ,
    1038 (Pa. Super. 2001).
    Giannantonio argues that when he entered into the plea agreement in
    2006 with the federal prosecutor, it was with the understanding “easily
    inferred from the surrounding circumstances,” that he would be required to
    register as a sex offender in the Commonwealth of Pennsylvania for ten
    years.   Appellant’s Brief at 10.     He maintains that because of this
    agreement, the Commonwealth entered into an implied contract with him.
    Alternatively, he argues that the Commonwealth was a “quasi party or third-
    party beneficiary to the [federal] plea agreement.”       
    Id. Giannantonio further
    contends that the Commonwealth breached that alleged agreement
    in 2012 by requiring him to register under the new requirements of SORNA,
    and asserts that this Court “should enforce the implied contract as is
    required by fundamental fairness and contract law, and the Contracts
    -6-
    J-A02031-15
    Clauses” of the Constitutions of the United States and Pennsylvania. 
    Id., at 9.
    The Commonwealth responds that it does not owe a contractual duty
    to Giannantonio because it was not a party to the plea in federal court, and
    the record contains no evidence that the Commonwealth took any action
    whatsoever with respect to his federal guilty plea.             Therefore, the
    Commonwealth      argues,   it   cannot   be   seriously   contended   that   the
    Commonwealth acted in any way that would create an inference that it
    entered into an agreement, express or implied, with Giannantonio regarding
    sexual offender registration.
    Giannantonio’s argument that the Commonwealth entered into an
    implied contract with him is untenable.           “An implied contract is an
    agreement which legitimately can be inferred from the intention of the
    parties as evidenced by the circumstances and the ordinary course of dealing
    and the common understanding of men.” Martin v. Little, Brown and Co.,
    
    450 A.2d 984
    , 987 (Pa. Super. 1981) (citation and internal quotation marks
    omitted).
    Nowhere in the record is there any indication that the Commonwealth
    was a party to Giannantonio’s plea agreement. In fact, there is absolutely
    nothing in the record demonstrating that state prosecutors or the PSP
    participated in Giannantonio’s plea agreement in any way. The record
    indicates that Giannantonio entered into a plea agreement with a federal
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    prosecutor after being charged with federal offenses stemming from his
    possession of child pornography. There is no indication of any involvement
    by Commonwealth representatives. Because the Commonwealth had no
    involvement or participation in the plea negotiation there is no implied
    contract between Giannantonio and the Commonwealth.
    To circumvent this deficiency, Giannantonio alternatively argues that
    the “Commonwealth, though not a direct party to the plea agreement, is a
    quasi-party or third party beneficiary to all Megan’s Law cases involving plea
    agreements.” Appellant’s Brief at 10. No case law or other authority is cited
    in support of this contention.
    In Guy v. Liederbach, 
    459 A.2d 744
    (Pa. 1983), our Supreme Court
    explained that Section 302 of the Restatement (Second) of Contracts
    (1979), mandates the following two-part test to determine whether one is a
    third-party beneficiary to a contract:
    (1) the recognition of the beneficiary’s right must be appropriate
    to effectuate the intention of the parties, and (2) … the
    circumstances indicate that the promisee intends to give the
    beneficiary the benefit of the promised performance.
    
    Id., at 751.
    Of course, in the instant case, there is no express contract. See, e.g.,
    Appellant’s Brief at 10 (noting “[e]ven though the parties did not create an
    express written agreement…”).      Under the aforementioned test, however,
    even when there is no express contractual clause, an entity may still be a
    third-party beneficiary. However, “Guy did not alter the requirement that in
    -8-
    J-A02031-15
    order for one to achieve third-party beneficiary status, that party must show
    that both parties to the contract so intended, and that such intent was within
    the parties’ contemplation at the time the contract was formed.” Burks v.
    Federal Ins. Co., 
    883 A.2d 1086
    , 1088 (Pa.Super. 2005) (emphasis in
    original).
    We agree with the trial court that there was no intent here to create
    any   contractual   obligations   on   the   Commonwealth       of   Pennsylvania.
    Pennsylvania was not a party to the agreement in any manner, thereby
    negating any notion of a “quasi-party.” Furthermore, there is no evidence
    that Pennsylvania was a third-party beneficiary.       Not only was there no
    intent to benefit Pennsylvania, no benefit at all inured to Pennsylvania
    because of the guilty plea. The statutorily mandated burden to supervise
    Giannantonio passed to Pennsylvania once he resumed residency here
    following his release, but certainly no benefit was realized.
    Giannantonio also argues that SORNA cannot apply to him because his
    plea deal was structured around the 10-year Megan’s Law III registration
    period then in effect. In support, he relies on Commonwealth v.
    Hainesworth, 
    82 A.3d 444
    (Pa. Super. 2013) (en banc), appeal denied, 
    95 A.3d 276
    (Pa. 2014), and Commonwealth v. Partee, 
    86 A.3d 245
    (Pa.
    Super. 2014), appeal denied, 
    97 A.3d 744
    (Pa. 2014). The Commonwealth
    responds that Giannantonio mistakenly relies on Hainesworth and Partee
    because the evidence of record does not even demonstrate that the ten-year
    -9-
    J-A02031-15
    registration period was a negotiated term of the federal plea, let alone
    something to which the Commonwealth acquiesced. The Commonwealth is
    correct; Hainesworth and Partee are inapplicable.         Hainesworth and
    Partee stand for the proposition that this Court will specifically enforce
    parties’ plea bargains.
    In Hainesworth, this Court affirmed the trial court’s decision that the
    retroactive application of SORNA would offend a negotiated term in the plea
    agreement between the Commonwealth and Hainesworth. 
    See 82 A.3d at 450
    .    In Partee, the panel found that Partee’s negotiated plea “was
    structured so that he would only be subject to a ten-year rather than a
    lifetime reporting 
    requirement[.]” 86 A.3d at 249
    . The panel explained that,
    “[u]nder our reasoning in Hainesworth, [Partee] arguably would be entitled
    to the benefit of that bargain.” 
    Id. The panel
    nevertheless rejected Partee’s
    challenge because he had violated his initial plea agreement by violating the
    terms of his probation, holding that, “having failed to abide by the terms of
    the plea bargain, that agreement is no longer in effect, and hence, [Partee]
    is not entitled to specific performance.” 
    Id., at 250.
    Unlike in Hainesworth and Partee, there is no evidence here that
    Giannantonio’s guilty plea was negotiated or structured to insure that he
    would register for only a ten-year period.     The record contains neither a
    colloquy from the federal guilty plea or sentencing hearings nor testimony or
    any other evidence demonstrating that counsel negotiated a specific ten-
    - 10 -
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    year registration period. Rather, the guilty plea required Giannantonio to
    register and report pursuant to the law of the state in which he would reside
    following his release (not necessarily Pennsylvania). We agree with the trial
    court’s conclusion that “because [Giannantonio] has failed to demonstrate
    through credible evidence that registration for a ten-year period was a
    bargained[-]for element of his negotiated plea, the petition for relief from
    SORNA’s requirements for an additional [five] years was properly denied.”
    Trial Court Opinion, dated 7/14/14, at 13.
    Giannantonio next avers that “SORNA is unconstitutional as enacted
    and applied to him because it substantially impairs the implied contract in
    violation of the contract clauses of the U.S. and Pennsylvania Constitutions.”
    Appellant’s Brief at 16. As we have already found that there was no contract
    between Giannantonio and the Commonwealth, we need not address this
    contention further.
    Giannantonio’s final contention also lacks merit. In this argument,
    Giannantonio concedes that prior versions of Pennsylvania’s Megan’s Law
    have been determined to be collateral consequences of a conviction, and
    therefore, the laws were deemed constitutional.     However, he argues that
    the aggregated requirements of SORNA are much more restrictive than the
    prior versions and are accordingly “punitive in nature as applied to [him],”
    thus violating the ex post facto clause of the United States constitution.
    Appellant’s Brief at 25. He blames SORNA for requiring that he disclose
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    personal information that was not required under Megan’s Law III, which he
    alleges led the Border Patrol to conduct an intrusive search of his person and
    property upon his return from Bermuda.             He also emphasizes the
    embarrassment and inconvenience he feels for having to appear in-person to
    register for an additional five years. Giannantonio also claims that, because
    SORNA did not afford him a hearing before he was classified as a Tier I
    offender, his right to due process was violated. See Appellant’s Brief at 39.5,
    6
    The Commonwealth responds that the legislature’s express intent in
    enacting SORNA was “to provide a non-punitive statutory scheme to protect
    ____________________________________________
    5
    Giannantonio also summarily argues that “SORNA has no rational basis in
    law” and “SORNA is unconstitutional as it lacks due process.” Appellant’s
    Brief at 29 and 38. He provides no discussion of, or citation to, authority
    pertaining to substantive and procedural due process. He also fails to cite to
    or analyze any case law pertaining to the test used to determine whether a
    statute has a “rational basis” to pass constitutional muster. Because his “due
    process position is underdeveloped, … we will not determine whether
    SORNA’s retroactive increase of registration requirements can withstand
    either strict scrutiny or the rational basis test.” Commonwealth v. Nase,
    
    104 A.3d 528
    , 530 (Pa. Super. 2014). This undeveloped claim is waived.
    6
    Gionnantonio also contends that SORNA violates due process because
    SORNA does not provide notice for an end date for registration, nor does it
    provide a hearing for offenders “to challenge the requirements imposed upon
    him.” Appellant’s Brief at 39. A simple calculation of adding the number of
    years of required registration onto the year of release quickly provides an
    end date. As demonstrated by the filing of his petition for habeas corpus,
    his participation in the hearing before the trial court, and the filing of the
    instant appeal, Giannantonio has been provided, and taken full advantage
    of, all available processes to challenge the requirements imposed on him.
    Accordingly, his due process claim is without merit.
    - 12 -
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    the general public” and our Supreme Court has twice held that substantially
    similar language in previous versions of SORNA demonstrates a non-punitive
    intent.   Appellee’s Brief at 27 (citing Commonwealth v. Williams, 
    832 A.2d 962
    , 971 (Pa. 2003), and Commonwealth v. Gaffney, 
    733 A.2d 616
    ,
    619 (Pa. 1999)). The Commonwealth asserts that SORNA is a non-punitive,
    collateral consequence and, therefore, retroactive enforcement does not
    violate the federal ex post facto clause. Both parties analyze SORNA using
    the seven factors provided in Kennedy v. Mendoza-Martinez, 
    372 U.S. 144
    , 168-69 (1963), a test used to determine whether the effects of a
    statute are punitive or civil in nature.
    An issue involving a constitutional challenge presents a question of
    law.   Thus, our standard of review is de novo and our scope of review is
    plenary. See Commonwealth v. Molina, 
    104 A.3d 430
    , 441 (Pa. 2014).
    This Court recently reviewed, analyzed, and rejected an ex post facto
    argument nearly identical to the one raised here.    In Commonwealth v.
    Perez, 
    97 A.3d 747
    (Pa. Super. 2014), the appellant pled nolo contendere
    to one count of indecent assault. The trial court sentenced him to a term of
    nine to twelve months’ imprisonment, plus two years’ probation, and
    ordered him to register as a sex offender for a period of twenty-five years
    pursuant to the requirements under SORNA. On appeal, Perez argued that
    the application of SORNA’s registration requirement period was prohibited
    under the ex post facto clauses of the U.S. and Pennsylvania Constitutions
    - 13 -
    J-A02031-15
    because Megan’s Law III was the law in effect when he committed his
    offenses.
    After observing that Pennsylvania courts apply the two-prong test
    articulated in Smith v. Doe, 
    538 U.S. 84
    (2003), to determine if a law
    inflicts punishment,7 a panel of this Court thoroughly analyzed SORNA
    utilizing the seven Mendoza-Martinez factors8 before concluding that the
    retroactive application of SORNA did not violate the ex post facto clauses of
    the federal or state constitutions. See 
    id., at 752-759.
    ____________________________________________
    7
    The first prong of the Smith test requires examination of legislature’s
    intent in enacting the law. If the intent is punitive, the statute constitutes
    punishment and that is the end of the analysis. If the intent is civil and non-
    punitive, however, the second prong of the test applies, requiring an
    examination of “whether the statutory scheme is so punitive either in
    purpose or effect as to negate [the legislature’s] intent to deem it civil.”
    
    Perez, 97 A.3d at 751
    (citing 
    Smith, 538 U.S. at 92
    ).
    8
    The United States Supreme Court in Kennedy v. Mendoza–Martinez,
    
    372 U.S. 144
    (1963), mandated a seven-factor test to be applied in
    determining whether the effects of a statute are sufficiently punitive to
    override the legislature's preferred categorization. Courts were directed to
    consider: (1) whether the sanction involves an affirmative disability or
    restraint; (2) whether it has historically been regarded as a punishment; (3)
    whether it comes into play only on a finding of scienter; (4) whether its
    operation will promote the traditional aims of punishment—retribution and
    deterrence; (5) whether the behavior to which it applies is already a crime;
    (6) whether an alternative purpose to which it may rationally be connected
    is assignable for it; and (7) whether it appears excessive in relation to the
    alternative purpose assigned. See 
    id., at 168–169.
    The Supreme Court
    recognized that each factors’ review may result in different conclusions
    which were to be balanced in making an overall determination of whether
    the statute was punitive. See 
    id. - 14
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    In a case decided less than two weeks after Perez, a different panel of
    this Court specifically held that SORNA’s requirement of 15 years registration
    for a Tier I offender was not unconstitutional.      In Commonwealth v.
    McDonough, 
    96 A.3d 1067
    (Pa. Super. 2014), appeal denied, 
    108 A.3d 34
    (Pa. 2015), the appellant was found guilty after a jury trial of indecent
    assault and sentenced to a term of one to two years’ incarceration. He was
    classified as a Tier I sexual offender under SORNA, subject to a 15-year
    registration period.   On appeal, McDonough argued, as does Giannantonio
    here, that the 15-year registration requirements of SORNA for a Tier I
    offense are not civil in nature because they impose restrictions and
    requirements which, if violated, can result in imprisonment.       This Court
    rejected that contention, stating:
    While [Commonwealth v.] Gaffney[, 
    733 A.2d 616
    (Pa. 1999)]
    and [Commonwealth v.] Benner[, 
    853 A.2d 1068
    (Pa. Super.
    2004)] were decided prior to the effective date of SORNA, the
    same principles behind the registration requirements for sexual
    offenders under Megan’s Law apply to those subject to SORNA.
    Namely, to effectuate, through remedial legislation, the non-
    punitive goal of public safety. 
    Gaffney, 733 A.2d at 619
    ; see 42
    Pa.C.S. § 9791(a) (legislative findings and declaration of policy
    behind registration of sexual offenders). In fact, one of the main
    purposes behind SORNA is to fortify the registration provisions
    applicable to such offenders. See 42 Pa.C.S. § 9799.10 (purpose
    of registration of sexual offenders under SORNA); see also H.R.
    75, 195th Gen. Assemb. Reg. Sess. (Pa.2012). With this purpose
    in mind, we cannot find that the law is unconstitutional as it
    applies to McDonough. He has offered neither competent nor
    credible evidence to undermine the legislative findings behind
    SORNA’s registration provisions. Accordingly, we find no 
    error. 96 A.3d at 1071
    .
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    Similar to the case presented in McDonough, Giannantonio has not
    offered any evidence to “undermine” the Legislature’s remedial justification
    in enacting SORNA. Accordingly, his claim that the application of SORNA in
    the instant case violates the ex post facto clause of the United States
    Constitution fails.
    Based on the foregoing, we conclude that the trial court did not abuse
    its discretion in denying Giannantonio’s habeas corpus petition.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 4/20/2015
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