                       Illinois Official Reports

                              Appellate Court



                  People v. Donley, 2015 IL App (4th) 130223



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           ROBERT V. DONLEY, Defendant-Appellant.–THE PEOPLE OF
                  THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT V.
                  DONLEY, Defendant-Appellant.



District & No.    Fourth District
                  Docket Nos. 4-13-0223, 4-13-0617 cons.



Filed             March 26, 2015



Decision Under    Appeal from the Circuit Court of Livingston County, No. 96-CF-169;
Review            the Hon. Jennifer H. Bauknecht, Judge, presiding.



Judgment          Affirmed.




Counsel on        Michael J. Pelletier, of State Appellate Defender’s Office, of
Appeal            Springfield, and Peter A. Carusona and Mark D. Fisher, both of State
                  Appellate Defender’s Office, of Ottawa, for appellant.

                  Seth Uphoff, State’s Attorney, of Pontiac (Patrick Delfino, David J.
                  Robinson, and Luke McNeill, all of State’s Attorneys Appellate
                  Prosecutor’s Office, of counsel), for the People.
     Panel                    JUSTICE STEIGMANN delivered the judgment of the court, with
                              opinion.
                              Presiding Justice Pope and Justice Harris concurred in the judgment
                              and opinion.




                                               OPINION

¶1         Following a May 1997 bench trial, the trial court found defendant, Robert V. Donley,
       guilty of first degree murder (720 ILCS 5/9-1(a)(1), (a)(2) (West 1996)) and later sentenced
       him to 45 years in prison. Defendant has since filed numerous pleadings unsuccessfully
       challenging his conviction and sentence. Two such pleadings are at issue in these appeals,
       which this court has sua sponte consolidated.
¶2         In January 2013, defendant pro se filed a petition for relief from judgment under section
       2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2012)), challenging
       his three-year mandatory-supervised-release (MSR) term. In March 2013, the trial court
       sua sponte dismissed defendant’s petition with prejudice.
¶3         In June 2013, defendant pro se filed a second petition for relief from judgment, averring
       that “his conviction and sentence was obtained by fraud, ignorance, and deprivation of a
       defense.” Later that month, the trial court struck defendant’s petition as untimely and
       “previously dismissed with prejudice.”
¶4         Defendant appeals, urging this court to vacate the trial court’s sua sponte rulings on his
       January and June 2013 petitions for relief from judgment. Defendant contends that (1) because
       he did not properly serve the State as required by Illinois Supreme Court Rule 105 (eff. Jan. 1,
       1989), his petitions were not ripe for adjudication; and (2) the court erred by striking his June
       2013 petition prior to the 30-day minimum time limit imposed by the supreme court in People
       v. Laugharn, 233 Ill. 2d 318, 909 N.E.2d 802 (2009). We disagree and affirm.

¶5                                         I. BACKGROUND
¶6                                 A. Defendant’s Murder Conviction
¶7         The evidence presented at defendant’s May 1997 bench trial showed that despite an order
       of protection that barred defendant from contacting his wife, Carol Donley, defendant, in
       November 1996, disabled the telephone line to Carol’s residence, argued with her, broke a
       window, and entered her home. Defendant then stabbed Carol 21 times with a knife, killing
       her. Testimony provided by several witnesses, including Carol’s 10-year-old son, identified
       defendant as the person outside of Carol’s residence just before the murder who ran away
       immediately thereafter. Defendant later surrendered to police and provided a videotaped
       statement admitting his culpability. Deoxyribonucleic acid (DNA) testing revealed that blood
       police recovered from defendant’s person matched Carol’s DNA profile. Various items of
       physical evidence also supported the State’s case.
¶8         Defendant testified that he arrived at his wife’s home hoping to resolve their differences
       and did not plan the events that ensued. Defendant stated that the circumstances surrounding

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       the argument he had with his wife provoked him and he reacted in anger. Defendant’s counsel
       argued that the stabbing had been an act of rage.
¶9         The trial court found defendant guilty of first degree murder, noting that it could not
       “imagine a more conclusive case where the evidence is so overwhelming as to a defendant’s
       guilt.” The court later sentenced defendant to 45 years in prison.

¶ 10                      B. Defendant’s Filings Subsequent to His Incarceration
¶ 11        Defendant appealed, and this court affirmed his conviction and sentence but remanded
       with directions that the trial court (1) correct defendant’s sentencing order and (2) award 235
       days’ credit toward defendant’s sentence for time served. People v. Donley, No. 4-97-0564
       (May 14, 1999) (unpublished order under Supreme Court Rule 23).
¶ 12        In November 1998, defendant pro se filed his first petition for relief under the
       Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 to 122-8 (West 1998)), which the trial
       court later dismissed as frivolous and patently without merit under section 122-2.1(a)(2) of the
       Act (725 ILCS 5/122-2.1(a)(2) (West 1998)). Defendant appealed, and this court concluded
       that defendant stated the gist of a constitutional claim when he alleged that the trial judge was
       asleep during part of his bench trial. People v. Donley, 314 Ill. App. 3d 671, 674, 731 N.E.2d
       1260, 1263 (2000). We reversed and remanded for further proceedings, noting that “despite the
       strength of the State’s case against defendant, an allegation that the trial judge was asleep
       during a portion of defendant’s bench trial for first degree murder is sufficiently troubling that
       the matter should proceed to see what, if any, evidence defendant can muster in support of that
       claim at the second or (possibly) the third stage of proceedings under the Act.” Id. at 674, 731
       N.E.2d at 1263.
¶ 13        In March 2002, following remand, defendant’s appointed postconviction counsel filed an
       amended postconviction petition. The State later filed a motion to dismiss defendant’s
       amended postconviction petition. Following hearings in August 2002 and March 2003, the
       trial court granted the State’s motion to dismiss. Defendant appealed, and this court affirmed.
       People v. Donley, No. 4-03-0436 (Dec. 23, 2004) (unpublished order under Supreme Court
       Rule 23). In March 2005, the Supreme Court of Illinois denied defendant’s petition for leave to
       appeal. People v. Donley, 214 Ill. 2d 539, 830 N.E.2d 5 (2005) (table).
¶ 14        In June 2006, defendant pro se filed a successive postconviction petition under the Act,
       which the trial court dismissed upon finding that it was frivolous and patently without merit.
       Defendant filed a notice of appeal, and the court appointed the office of the State Appellate
       Defender (OSAD) to serve as his counsel. In March 2007, OSAD moved to withdraw as
       counsel, contending that defendant’s appeal presented no meritorious issues. In April 2007,
       defendant filed additional points and authorities, opposing OSAD’s motion to withdraw. This
       court declined to consider the merits of defendant’s claim that the trial court erred by
       dismissing his June 2006 petition at the first stage of the postconviction proceedings because
       defendant failed to comply with section 122-1(f) of the Act (725 ILCS 5/122-1(f) (West
       2006)), in that he did not obtain leave of court before filing a successive postconviction
       petition. People v. Donley, No. 4-06-0623 (Dec. 14, 2007) (unpublished order under Supreme
       Court Rule 23). In so concluding, we granted OSAD’s motion to withdraw and affirmed the
       court’s judgment. Id.



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¶ 15       We note that in addition to the two petitions at issue in this case, this court has recently
       considered and rejected two additional appeals, which were based on the trial court’s denial of
       defendant’s pro se (1) April 2013 motion for DNA testing (People v. Donley, No. 4-13-0531
       (Mar. 11, 2015) (unpublished summary order under Supreme Court Rule 23(c)(2))) and (2)
       September 2013 motion for leave to file a successive postconviction petition (People v.
       Donley, No. 4-14-0153 (Mar. 11, 2015) (unpublished summary order under Supreme Court
       Rule 23(c)(2))). See People v. Eubanks, 283 Ill. App. 3d 12, 24, 669 N.E.2d 678, 686 (1996)
       (the appellate court may take judicial notice of its own records).

¶ 16                            C. The Petitions at Issue in This Appeal
¶ 17                1. Defendant’s January 2013 Petition for Relief From Judgment
¶ 18       On January 16, 2013, defendant pro se filed an amended petition for relief from judgment
       under section 2-1401 of the Code, challenging his three-year MSR term. Included with
       defendant’s petition was a notice of filing in which defendant certified that one day earlier he
       mailed the original and one copy of his petition to the Livingston County circuit clerk.
¶ 19       On March 14, 2013, the trial court entered the following order on defendant’s January 2013
       amended petition for relief from judgment:
                  “The State has not filed a responsive pleading. Therefore, all well pleaded facts in
              the petition are deemed admitted. Initially, the court notes that defendant’s [section]
              2-1401 petition has not been timely filed, nor has defendant alleged any statutory basis
              for extending the two-year statute of limitations. In fact, no affidavit is attached to the
              amended petition or the original petition. Furthermore, the petition itself is insufficient
              as a matter of law[,] and therefore judgment on the pleadings in favor of plaintiff and
              against defendant is appropriate. *** [Defendant’s] petition is dismissed with
              prejudice.”

¶ 20                   2. Defendant’s June 2013 Petition for Relief From Judgment
¶ 21       On June 6, 2013, defendant pro se filed a second petition for relief from judgment, averring
       that “his conviction and sentence was obtained by fraud, ignorance, and deprivation of a
       defense.” Specifically, defendant contended that the trial court should vacate his conviction
       and sentence because (1) the grand jury that returned the true bill of indictment in this case was
       not properly convened; (2) his arrest was not followed by a “prompt preliminary hearing to
       establish probable cause”; (3) the police search of his person, home, and vehicle was
       unreasonable under the fourth amendment to the United States Constitution (U.S. Const.,
       amend. IV); and (4) the State withheld “fraudulent” grand jury transcripts in violation of Brady
       v. Maryland, 373 U.S. 83 (1963). Defendant also alleged ineffective assistance of trial and
       appellate counsel in that each failed to argue or raise, respectively, his defective indictment.
¶ 22       Included with defendant’s petition was a “proof of service and notice of filing,” in which
       defendant certified that on June 4, 2013, he mailed, in pertinent part, his petition and a cover
       letter to the Livingston County circuit clerk. Defendant’s handwritten cover letter notified the
       State that it had 30 days to “answer, respond, or otherwise [plead].”
¶ 23       On June 27, 2013–21 days after defendant filed his second petition for relief from
       judgment–the trial court struck defendant’s petition as untimely and “previously dismissed


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       with prejudice.” The court then ordered the Livingston County circuit clerk to return, unfiled,
       any further pleadings from defendant unless he first obtains leave of the court.
¶ 24      This appeal followed.

¶ 25                                          II. ANALYSIS
¶ 26       On appeal, defendant (now represented by OSAD) contends that (1) because he did not
       properly serve the State, as required by Rule 105, his January and June 2013 petitions for relief
       from judgment were not ripe for adjudication; and (2) the trial court erred by striking his June
       2013 petition for relief from judgment prior to the 30-day minimum time limit imposed by the
       supreme court in Laugharn. Defendant urges this court to vacate the trial court’s sua sponte
       rulings on his petitions and remand for further proceedings. We decline to do so.

¶ 27                   A. Petitions for Relief From Judgments Under Section 2-1401
                              of the Code, Notice, and the Standard of Review
¶ 28        “Section 2-1401 allows for relief from final judgments more than 30 days after their entry,
       provided the petition proves by a preponderance of evidence certain elements.” Laugharn, 233
       Ill. 2d at 322, 909 N.E.2d at 804-05. A petition for relief from judgment “ ‘must be filed not
       later than [two] years after the entry of the order or judgment.’ ” Id. at 322, 909 N.E.2d at 805
       (quoting 735 ILCS 5/2-1401(c) (West 2004)). “Relief under section 2-1401 is predicated upon
       proof, by a preponderance of evidence, of a defense or claim that would have precluded entry
       of the judgment in the original action and diligence in both discovering the defense or claim
       and presenting the petition.” People v. Vincent, 226 Ill. 2d 1, 7-8, 871 N.E.2d 17, 22 (2007).
¶ 29        Section 2-1401(b) provides that “[a]ll parties to the petition shall be notified as provided by
       rule.” 735 ILCS 5/2-1401(b) (West 2012). Illinois Supreme Court Rule 106 (eff. Aug. 1, 1985)
       states that notice of the filing of a petition under section 2-1401 of the Code “shall be given by
       the same methods provided in Rule 105.” Rule 105(b) provides that notice shall be directed to
       the party and must be served either by summons, by prepaid certified or registered mail, or by
       publication. Ill. S. Ct. R. 105(b) (eff. Jan. 1, 1989). “The notice must state that a judgment by
       default may be taken against the party unless he files an answer or otherwise files an
       appearance within 30 days after service.” People v. Nitz, 2012 IL App (2d) 091165, ¶ 9, 971
       N.E.2d 633 (citing Ill. S. Ct. R. 105(a) (eff. Jan. 1, 1989)).
¶ 30        A trial court’s sua sponte dismissal with prejudice of a section 2-1401 petition is the same
       as a denial of that petition. Vincent, 226 Ill. 2d at 12, 871 N.E.2d at 25. We review de novo a
       trial court’s dismissal of a petition brought under section 2-1401 of the Code. Laugharn, 233
       Ill. 2d at 322, 909 N.E.2d at 804.

¶ 31                              B. Defendant’s Improper Service Claim
¶ 32       Defendant asserts that the trial court erred by dismissing his January and June 2013
       petitions for relief from judgment because he did not properly serve the State as required by
       Rule 105. Specifically, defendant claims that when he sent his petitions through the regular
       mail instead of providing the State notice by either (1) summons, (2) certified or registered
       mail, or (3) publication, he failed to comply with Rule 105. Given his failure, defendant posits
       that the 30-day period for the State to answer or otherwise plead did not begin. From that


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       premise, defendant claims that the court’s sua sponte dismissal was premature because his
       January and June 2013 petitions were not yet ripe for adjudication. We disagree.
¶ 33       In People v. Alexander, 2014 IL App (4th) 130132, ¶ 2, 23 N.E.3d 621, we considered the
       same argument defendant now raises. In Alexander, we first noted “the law in Illinois is settled
       that (1) a trial court may dismiss a section 2-1401 petition on its own motion without benefit of
       responsive pleadings (Vincent, 226 Ill. 2d at 9, 871 N.E.2d at 23) and (2) a court may not
       adjudicate a section 2-1401 petition prior to the 30-day period in which the respondent can
       answer or otherwise plead (Laugharn, 233 Ill. 2d at 323, 909 N.E.2d at 805).” Id. ¶ 41, 23
       N.E.3d 621. In rejecting the defendant’s argument that the court’s denial of his section 2-1401
       petition was premature because he did not properly serve the State, we concluded, as follows:
                    “The flaw in defendant’s argument is that under Laugharn, the primary purpose of
                the 30-day period is to afford the State suficient time to respond to a petitioner’s claims
                seeking relief from judgment before a trial court may sua sponte consider the petition.
                Laugharn, 233 Ill. 2d at 323, 909 N.E.2d at 805. In other words, the court must allow
                the State time to make its position known. However, the 30-day period does not
                provide a sword for a petitioner to wield once a court–as in this case–does not find in
                his favor, especially given that, under defendant’s interpretation, the basis of his claim
                on appeal is his failure to comply with Rule 105. If we were to accept defendant’s
                rationale, a prisoner who uses regular mail to effect service upon the State will–upon
                appeal–be rewarded with a second bite of the apple if the court denies his petition on
                the merits. Indeed, no practical reason would exist to comply with the provisions of
                Rule 105 because to do so would foreclose that avenue of review, which effectively
                empowers a prisoner to persist in filing frivolous claims.” (Emphasis in original.)
                Id. ¶ 46, 23 N.E.3d 621.
¶ 34       We adhere to our conclusion in Alexander that a “[d]efendant should not be able to serve a
       party incorrectly and then rely on the incorrect service to seek reversal” of the trial court’s
       decision. Id. ¶ 47, 23 N.E.3d 621.

¶ 35                                    C. Defendant’s Timing Claim
¶ 36       Defendant argues that the trial court erred by striking his June 2013 petition prior to the
       30-day minimum time limit imposed by the supreme court in Laugharn. However, because we
       are addressing defendant’s successive section 2-1401 petition, we disagree.
¶ 37       In Laugharn, 233 Ill. 2d at 323, 909 N.E.2d at 805, the supreme court considered the
       propriety of the trial court’s sua sponte dismissal of a prisoner’s initial section 2-1401 petition
       seven days after its filing with the court. As we have previously noted, the supreme court held
       that the court’s dismissal of the prisoner’s petition before the expiration of the 30-day period in
       which the State could answer or plead was premature, explaining that “[w]hile Vincent allows
       for sua sponte dismissals of section 2-1401 petitions, it did not authorize such action prior to
       the expiration of the 30-day period.” Id.
¶ 38       In support of the State’s position that the trial court’s dismissal was proper, the State cites
       the First District’s decision in Village of Glenview v. Buschelman, 296 Ill. App. 3d 35, 693
       N.E.2d 1242 (1998). In Buschelman, the defendants filed two section 2-1401 petitions, both of
       which the court denied. The defendants appealed the denial of only their second petition. Id. at
       38, 693 N.E.2d at 1244. The plaintiff responded that the appellate court lacked jurisdiction to


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       consider the defendants’ appeal. Id. In agreeing with the plaintiff’s jurisdictional claim, the
       First District provided the following analysis:
                    “The issue of properly appealing section 2-1401 petitions is of particular
               importance where a petitioner has filed successive section 2-1401 petitions for relief
               instead of making timely appeals to attack prior judgments or orders. The supreme
               court’s decisions in Deckard v. Joiner, 44 Ill. 2d 412, 418-19[, 255 N.E.2d 900,
               903-04] (1970), and its progeny have steadily held that repeated postjudgment motions
               of this nature are prohibited, as they unnecessarily frustrate the policy of bringing
               finality to court proceedings. [Citations.] In accord with this rule, Illinois courts have
               repeatedly held that the filing of multiple postjudgment petitions does not extend the
               time for appealing earlier judgments from which the supplemental postjudgment
               petitions seek relief. [Citations.] The courts’ aversion to allowing additional section
               2-1401 petitions is heightened where those petitions call on courts to entertain matters
               that were previously adjudicated or that could have been raised earlier in the
               proceedings. [Citations.]” (Emphasis added.) Id. at 39-40, 693 N.E.2d at 1245.
¶ 39       We note that in People v. Walker, 395 Ill. App. 3d 860, 868, 918 N.E.2d 1260, 1267
       (2009), the Second District disagreed with Buschelman, writing as follows:
               “The [Buschelman] reasoning *** is puzzling. The Deckard court explicitly noted that
               it was considering the propriety of more than one ordinary postjudgment motion–that
               neither of the filings in question was under the predecessor to section 2-1401. Deckard,
               44 Ill. 2d at 418-19[, 255 N.E.2d at 903-04]. The Deckard court merely held that a
               second postjudgment motion does not delay the time for an original appeal. Deckard,
               44 Ill. 2d at 419[, 255 N.E.2d at 904].”
       The Walker court ultimately rejected the notion that a trial court lacks jurisdiction to consider
       more than one section 2-1401 petition. Id. at 869-70, 918 N.E.2d at 1268.
¶ 40       Although we agree with Walker that a party is not limited jurisdictionally to one section
       2-1401 petition, the policy underpinning the Deckard court’s analysis as discussed in
       Buschelman–that is, that successive section 2-1401 petitions unnecessarily frustrate the policy
       of bringing finality to trial court proceedings–remains entirely correct and applicable to the
       facts of this case. In support of this conclusion, we note the Seventh Circuit’s decision in
       Empress Casino Joliet Corp. v. Blagojevich, 638 F.3d 519, 538 (7th Cir. 2011), where the
       court wrote that “[section] 2-1401 decisions have res judicata effect on successive [section]
       2-1401 petitions, not on entirely new actions filed against different parties.” (Emphases in
       original.) The Seventh Circuit further cited approvingly the Buschelman court’s observation
       that the Illinois Supreme Court’s decisions in Deckard and its progeny have steadily held that
       repeated section 2-1401 petitions are prohibited because they “ ‘unnecessarily frustrate the
       policy of bringing finality to court proceedings.’ ” Id. (quoting Buschelman, 296 Ill. App. 3d at
       39, 639 N.E.2d at 1245). The Seventh Circuit further noted that “[t]he reason for this rule is
       obvious: It cuts down on the waste of judicial resources by preventing litigants from plying
       courts with the same losing arguments again and again.” Id.
¶ 41       Since defendant’s conviction almost 18 years ago, it is readily apparent that he is unhappy
       with his lot in life–serving a lengthy prison sentence for merely brutally murdering his
       estranged wife–and, as a result, has chosen to file numerous pleadings in futile and frivolous
       attempts to escape the consequences of this heinous murder. On this record, we have every
       reason to believe that defendant’s ongoing abuse of the judicial system will continue because

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       the normal disincentives that affect the general public, be they economic, professional, or
       social, do not apply to defendant. Simply put, defendant has nothing to lose by continuing to
       burden the courts with his frivolous pleadings. The judiciary cannot permit this squandering of
       scarce judicial resources to continue unabated. Indeed, we note that the trial court is already
       keenly aware of defendant’s history, as shown by the court’s order barring the filing of any
       subsequent pleadings from defendant until he first obtains leave of court.
¶ 42       Under the circumstances presented in this case, we reject defendant’s argument that the
       supreme court’s decision in Laugharn prohibits a trial court from immediately considering a
       successive section 2-1401 petition that (1) does not comport with the requirements outlined in
       section 2-1401 of the Code or (2) raises claims the court has previously considered and rejected
       or could have been raised in the initial section 2-1401 pleading. As we have previously noted,
       the 30-day rule announced in Laugharn was intended to allow a party sufficient time to
       respond to a section 2-1401 petition instead of empowering a prisoner to persist in filing
       frivolous claims. The supreme court in Laugharn was not dealing with a successive section
       2-1401 petition, and we do not believe that the supreme court would limit a trial court’s
       authority on handling such petitions, especially, as here, when they are clearly frivolous.
       Moreover, to proceed as defendant urges would not only be inconsistent with the court’s
       “traditional right of discretionary control over its own docket” (Grillo v. Yeager Construction,
       387 Ill. App. 3d 577, 603, 900 N.E.2d 1249, 1274 (2008)), but also the public policy
       component of conserving limited judicial resources and time (City of Rockford v. Unit Six of
       the Policemen’s Benevolent & Protective Ass’n, 362 Ill. App. 3d 556, 566, 840 N.E.2d 1283,
       1292 (2005)).
¶ 43       If we were to hold otherwise, defendant could file successive section 2-1401 petitions
       weekly, and the trial court would be burdened with keeping track of which bogus petition had
       been filed more than 30 days earlier, so it could sua sponte dismiss it with prejudice. Or the
       court could shift that obligation to the already overburdened State’s Attorney’s office to
       determine when and how to address these spurious pleadings. Such a result would be
       unconscionable, and we will have no part in imposing such requirements.
¶ 44       Last, we note that the two issues raised in this consolidated appeal represent the
       defendant’s fifth and sixth appeals before this court. Without some consequence for his
       repeated frivolous filings, it is clear that defendant will continue to burden the trial and
       appellate courts with his bogus pleadings. “Accordingly, we order defendant to show cause
       within 30 days why sanctions should not be entered against him under Illinois Supreme Court
       Rule 375(b) (eff. Feb. 1, 1994) for filing a frivolous appeal. Until such time as (1) defendant
       responds to this order and (2) this court determines what action to take, we direct the clerk of
       this court to disregard–and by that we mean to not file–any new appeals submitted to this court
       by defendant.” Alexander, 2014 IL App (4th) 130132, ¶ 59, 23 N.E.3d 621; see also People v.
       Austin, 2014 IL App (4th) 140408, ¶ 26, 23 N.E.3d 615; Williams v. Commissary Department
       of the Department of Corrections, 407 Ill. App. 3d 1135, 1138, 948 N.E.2d 1061, 1063 (2011).

¶ 45                                      III. CONCLUSION
¶ 46      For the reasons stated, we affirm the trial court’s judgment.

¶ 47      Affirmed.


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