        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                 April 16, 2013 Session

             STATE OF TENNESSEE v. JOSHUA SHANE HAYES

            Direct Appeal from the Criminal Court for Davidson County
               No. 2006-B-1092, 2011-B-1047    Steve Dozier, Judge




                     No. M2012-01768-CCA-R3-CD- July 1, 2013


The State appeals the trial court’s grant of a motion to suppress filed by the Defendant,
Joshua Shane Hayes. The State contests the trial court’s finding that the “Exclusionary Rule
Reform Act,” which took effect July 1, 2011, did not apply retroactively to the search
wherein officers seized drugs from the Defendant. After a thorough review of the record and
applicable law, we affirm the trial court’s judgment.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL and J AMES C URWOOD W ITT, J R., JJ., joined.

Robert E. Cooper, Jr., Attorney General and Reporter; James E. Gaylord, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; John Zimmerman, Assistant
District Attorney General, for the appellant, State of Tennessee.

Rich McGee and James O. Martin, III, Nashville, Tennessee, for the appellee, Joshua Shane
Hayes.

                                        OPINION
                                         I. Facts

       This cases arises from law enforcement officers’ execution of a search warrant on
September 12, 2005. During the search, officers found a marijuana “grow operation.” The
officers arrested the Defendant for his participation in this operation, and the grand jury
indicted him for possession with intent to deliver 300 grams or more of cocaine,
manufacturing marijuana, and possession with intent to deliver more than ten pounds of
marijuana. After a jury trial, the jury convicted the Defendant of each of these offenses.
        The Defendant appealed his convictions to this Court, arguing, among other things,
that the trial court erred when it failed to suppress evidence seized as a result of the warrant,
which he alleged was defective. State v. Hayes, 337 S.W.3d 235 (Tenn. Crim. App. 2010).
The Defendant contended that the search warrant failed to strictly comply with Rule 41(c)
of the Tennessee Rules of Criminal Procedure and that it also failed to establish probable
cause. Id. at 249. This Court held:

       At the time the search warrant was issued in Defendant’s case, Tennessee Rule
       of Criminal Procedure 41(c) stated in relevant part:

              The magistrate shall prepare an original and two exact copies of
              the search warrant, one of which shall be kept by the magistrate
              as a part of his or her official records, and one of which shall be
              left with the person or persons on whom the search warrant is
              served. The magistrate shall endorse upon the search warrant
              the hour, date, and name of the officer to whom the warrant was
              delivered for execution; and the exact copy of the search warrant
              and the endorsement thereon shall be admissible evidence.
              Failure of the magistrate to make said original and two copies of
              the search warrant or failure to endorse thereon the date and
              time of issuance and the name of the officer to whom issued, or
              the failure of the serving officer where possible to leave a copy
              with the person or persons on whom the search warrant is being
              served, shall make any search conducted under said search
              warrant an illegal search and any seizure thereunder an illegal
              seizure.

       Tenn. R.Crim. P. 41(c). Rule 41 was reformatted effective July 1, 2006;
       however, there were no substantive changes.

              In the present case, the warrant in question was signed by Judge Casey
       Moreland on September 12, 2005. Detective Kajihara had already made
       copies of the warrant, and the Judge had to sign and date each copy. Judge
       Moreland’s copy of the warrant indicates that it was issued on September 12,
       2005, at 10:35 a.m. . . .; however, the original and the other copy, which was
       given to Defendant, state[d] that it was issued at 10:35 p.m. . . . The warrant
       was executed around 1:00 p.m. on September 12, 2005. At the suppression
       hearing, Judge Moreland testified that he had no doubt that he signed the
       warrant at 10:35 a.m. because he would not have been in the office “at

                                               2
       ten-thirty at night.” Detective Kajihara also testified that the warrant was
       signed at 10:35 a.m. on September 12, 2005.

              Defendant contends that the judge failed to strictly comply with Rule
       41(c) of the Tennessee Rules of Criminal Procedure because he wrote “p.m.”
       instead of “a.m.” on the original and one copy of the warrant. He argues that
       the warrant does not show that it was issued before it was executed, and the
       judge failed to retain an exact copy of the original search warrant. The State
       responds that the conflicting times represent a clerical error that did not
       prejudice Defendant.

Hayes, 337 S.W.3d at 251-52. The trial court relied on unpublished authority from this Court
for the proposition that the conflicting AM and PM in the search warrant was a clerical error
and not an “omission.” Id. at 252-53. Upon this basis the trial court denied the motion to
suppress. Id. This Court reversed. Id. at 254. In conducting our analysis in the Defendant’s
first appeal, we recognized the authority cited by the trial court but concluded that those cases
had misinterpreted Tennessee Rule of Criminal Procedure 41, citing a case issued by the
Tennessee Supreme Court. Id. We reasoned as follows:

               In State v. Bobadilla, 181 S.W.3d 641 (Tenn. 2005), a magistrate issued
       a search warrant on May 13, 2003, to search the defendant’s residence. The
       magistrate filled in the date that the search warrant was issued, but failed to
       state the hour that the warrant was issued. The trial court denied the
       defendant’s motion to suppress, ruling that the warrant was executed on the
       same day it was issued and that the date of issuance and the name of the officer
       to whom the warrant was issued were endorsed on the search warrant making
       the warrant “supply all the things needed.” Id. at 642. The Court of Criminal
       Appeals affirmed the trial court on grounds other than the merits of the search
       issue. The Supreme Court reversed, holding that the search and seizure were
       illegal pursuant to Tenn. R. Crim. P. 41(c). After quoting Rule 41(c), the
       Supreme Court emphasized, “[w]e have interpreted these rules strictly; the
       language is plain and the requirements are mandatory. Coffee, 54 S.W.3d at
       233-34.” Bobadilla, at 645. Specifically, the Supreme Court held,

              The trial court is eminently correct in its rationale–that the
              pertinent part of Rule 41(c) is designed to ensure that if a search
              warrant is executed prior to its issuance, such discrepancy will
              be apparent on the face of the warrant. Because the hour was
              not endorsed by the magistrate on the search warrant in this
              case, the warrant fails to explicitly show that it was issued then

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       executed. Therefore, the search warrant fails to meet the
       requirements as set forth in Tennessee Rule of Criminal
       Procedure 41(c).

Id. (emphasis added).

       We read Bobadilla to implicitly reject the “rule of omission” analysis
found in Powell. First, as noted in Bobadilla, the primary purpose of the rule
is to make sure that a search warrant is reviewed first by a magistrate, and then
issued before any search takes place pursuant to authority of the search
warrant. This requires in part that the time of the issuance of the search
warrant be set forth in the warrant. Logically, in order to ensure that the
warrant is first issued, then executed, not only must the time be endorsed, but
the accurate time must be endorsed.

        In State v. David Wayne Jones, No. M2007-01163-CCA-R3-CD, 2008
WL 833956 (Tenn. Crim. App. Mar. 28, 2008) no perm. app. filed, the two
defendants’ home was searched pursuant to a search warrant. It was noted on
the warrant that it was issued at “11:25,” but there was no indication whether
it was 11:25 a.m. or 11:25 p.m. Testimony at the suppression hearing by the
officer who obtained and executed the search warrant was that the warrant was
issued at 11:25 p.m. on March 2, 2005, and the search of defendants’ residence
began at 12:15 a.m. on March 3, 2005. The trial court denied the motions to
suppress filed by each defendant. In doing so, the trial court found that “ ‘the
time being omitted from the search warrant was not problematic in this
instance because the search warrant was executed on March 3, 2005[,] after
being signed on March 2, 2005.’” Id. at *2 (emphasis in original).

        This Court reversed the trial court’s denial of the suppression motions.
While the defendants contended that the omission of an a.m. or p.m.
designation was the same as failure to endorse altogether the time of issuance,
the State argued that since the evidence established that the warrant was issued
first and then executed, the defendants were not entitled to relief.

        Relying on Bobadilla, the Court of Criminal Appeals in Jones noted
that “although the search warrant contains the endorsement of an hour, 11:25,
it does not contain the endorsement of the hour of its issuance.” Jones, at *3
(emphasis in original). Hence, the court concluded that not only must a time
be endorsed, but also the correct and accurate time must be endorsed. The
Jones Court noted:

                                       4
       Because there was no designation of whether the warrant was
       issued at 11:25 a.m. or 11:25 p.m., the warrant fails to comply
       with the mandatory requirement of Rule 41 that it be endorsed
       with the hour of its issuance. Because of this deficiency, the
       warrant was invalid, and the resulting search was illegal.
       Consequently, the evidence seized pursuant to the warrant must
       be suppressed.

Id.

        The Jones Court was compelled by the ruling in Bobadilla to reach this
result notwithstanding the fact that the search warrant was issued before it was
executed. Jones, at *4.

        In State v. Patrick Daniels, No. W2008-00254-CCA-R10-CD, 2009
WL 2393113 (Tenn. Crim. App. Aug. 5, 2009), the defendant appealed the
trial court’s denial of his motion to suppress pursuant to Tenn. R. App. P. 10.
Defendant argued that he was entitled to relief because the search warrant,
pursuant to which all physical evidence in the drug charge against him was
seized, did not comply with the strict standards of Tenn. R. Crim. P. 41(c).

       The facts in Daniels are remarkably similar to the case sub judice. The
parties stipulated that the search warrant was issued at 10:35 a.m. on
December 2, 2005, and that the issuing magistrate circled “p.m.” instead of
“a.m.” when he endorsed the time of issuance upon the warrant. The search
warrant was subsequently executed, and defendant was consequently arrested,
with the arrest warrant being filed at 5:38 p.m. on December 2.

        The trial court found there was no prejudice to the defendant by the
magistrate erroneously circling “p.m.” rather than “a.m.,” and that the error did
not “compromise the integrity of the search and did not ‘undercut the purposes
[Tenn. R.Crim. P.] 41(c) is designed to serve.’” Id. at *1. Relying upon
Bobadilla and Jones, the court in Daniels reversed the trial court and
suppressed the evidence pursuant to Tenn. R. Crim. P. 41(c). Notwithstanding
the fact that the trial court ruled that a “good faith exception” to Tenn. R.
Crim. P. 41(c) could cure the error made by the issuing magistrate, this Court
concluded that “our Supreme Court has not recognized a good faith exception
to the procedural safeguards in Rule 41(c), and we are constrained to follow
the rule’s mandate.” Id.



                                       5
             Accordingly, this Court concluded that,

             By erroneously circling “ p.m.,” the magistrate endorsed the
             warrant with a time later than it was executed in violation of the
             rule’s express language and the rule’s purpose. Accordingly, we
             are compelled to reverse the trial court’s order denying the
             appellant’s motion to suppress.

      Id. at *3 (emphasis added).

             Based upon Bobadilla, Jones, and Daniels, we conclude that the
      pertinent part of Tenn. R. Crim. P. 41 is not a “rule of omission;” that is, it is
      not a situation where the sanctions apply only if the date and/or time of
      issuance of the warrant is omitted. The integral purpose of Rule 41 is to
      ensure that a search warrant is first issued, then executed. Accordingly, the
      requirement that the date and time of issuance shall be endorsed implicitly
      means that the correct date and time shall be endorsed. Thus, the search
      warrant in this case failed to comply with the requirements of Rule 41 and the
      motion to suppress must be granted.

Hayes, 337 S.W.3d at 254-56. Accordingly, we reversed the judgments of conviction and
remanded the case for further proceedings.

       After remand, on April 15, 2011, the Davidson County Grand Jury indicted the
Defendant on six drug related charges, three of which were identical to his previous
indictments. These charges stemmed from the same search we had previously found invalid.

      On May 23, 2011, the Governor signed into law the “Exclusionary Rule Reform Act.”
The act, codified at Tennessee Code Annotated section 46-1-108, provides:

              Notwithstanding any law to the contrary, any evidence that is seized as
      a result of executing a search warrant issued pursuant to this part or pursuant
      to Tennessee Rules of Criminal Procedure Rule 41 that is otherwise admissible
      in a criminal proceeding and not in violation of the constitution of the United
      States or Tennessee shall not be suppressed as a result of any violation of this
      part or any violation of the Tennessee Rules of Criminal Procedure Rule 41 if
      the court determines that such violation was a result of a good faith mistake or
      technical violation made by a law enforcement officer, court official, or the
      issuing magistrate as defined in subsection (c).



                                              6
T.C.A. § 40-6-108(a) (2012). The Act specifies that is “shall take effect July 1, 2011.” 2011
Tenn. Pub. Acts ch. 252 § 2.

        After the second indictment was issued, the Defendant again moved to have the
evidence against him suppressed based upon the invalid search warrant. At the hearing on
the motion to suppress, the State’s attorney informed the trial court that, based upon this
Court’s decision, the District Attorney’s office had asked the Legislature to change the law,
which had in fact happened. This was the basis for the Defendant’s re-indictment. The
Defendant’s attorney informed the trial court that there were two issues he wanted the court
to be addressed. The first issue was whether the “law of the case doctrine” divested the court
of jurisdiction to rehear the issue of the validity of the search warrant. The second issue was
whether the “Exclusionary Rule Reform Act,” effective July 1, 2011, was to be retroactively
applied .

       The trial court took the matter under advisement and later issued a written order. In
the order, the trial court found:

              The [D]efendant filed a motion to preclude the State from using the
       evidence secured as a result of the invalidated search warrant. The State
       argues the change in the law should be applied retroactively to allow the
       evidence to be presented. The Court finds the evidence should be suppressed
       as the new act should not be applied retroactively to validate the warrant.

               Generally, statutes are presumed to apply prospectively unless the
       legislature clearly demonstrates intent to the contrary. State v. Thompson, 151
       S.W.3d 434 (Tenn. 2004); Van Tran v. State, 66 S.W.3d 790, 797-98 (Tenn.
       2001); State v. Cauthern, 967 S.W.2d 726, 735 (Tenn. 1998). The legislature
       in this case did not exhibit an intention for this act to be applied retroactively.
       The State argues that as a procedural rule, the statute may be applied
       retroactively. However, the Court notes that similar to State v. Odom, the plain
       language of the statute does not indicate the intent to be retroactively applied.
       Thus, “had the legislature intended to depart from the long-established rule
       that statues are presumed to apply prospectively, it could have so indicated.”
       State v. Odom, 137 S.W.3d 572 (Tenn. 2004). Further, “even a procedural or
       remedial statute may not be applied retroactively if it impairs a vested right or
       a contractual obligation.” State v. Hanners, 235 [S.W.]3d 609, 612 (Tenn.
       Crim. App. 2007).

             The search warrant at issue in this case was executed in 2005. That
       warrant was found to be invalid based upon a failure to comply with the

                                               7
       applicable rule of criminal procedure. A legislative change to the Rules of
       Criminal Procedure in 2011 should not be applied retroactively to the search.
       Although the rule was amended, that amendment did not occur until after the
       indictment was issued in this case and there is no language indicating an intent
       for it to be applied retroactively. The Court finds the amendment should not
       be applied retroactively to validate the warrant.

              Additionally, such retroactive application would implicate
       constitutional protections against ex post facto laws. Both the United States
       and Tennessee Constitutions protect against ex post facto laws. U.S. Const.
       Art. 1, § 10, cl. 1; Tenn. Const. Art. 1, § 11. Our state supreme court has
       indicated that there are five classifications of ex post facto laws: (1) a law that
       provides for the infliction of punishment upon a person for an act done which,
       when it was committed, was innocent: (2) a law that aggravates a crime or
       makes it greater than when it was committed; (3) a law that changes a
       punishment or inflicts a greater punishment than the law annexed to the crime
       when it was committed; (4) a law that changes the rules of evidence and
       receives less or different testimony than was required at the time of the
       commission of the offense in order to convict the offender; and (5) every law
       which, in relation to the offense or its consequences, alters the situation of a
       person to his disadvantage. Miller v. State, 584 S.W.2d 758, 761 (Tenn. 1979).

               If the Court were to allow the retroactive application of the amended
       rule of procedure, clearly the law would alter the situation of the defendant to
       his disadvantage based upon the law’s relationship to the offenses charged in
       this case. Id. Without the amended rule, the evidence supporting the offenses
       would remain suppressed, as ordered by the Court of Criminal Appeals.
       Therefore, the Court finds the amended rule cannot be applied retroactively to
       this particular warrant due to ex post facto implications.

              Therefore, based upon the above considerations, the [D]efendant’s
       motion to suppress evidence based upon retroactive application of the
       amendments to Rule 41 of the Tennessee Rules of Criminal Procedure is
       granted.

        After the trial court issued its order, the State moved to dismiss the indictment, citing
its inability to prove the charges without the evidence seized. The trial court granted the
State’s motion to dismiss. The State now appeals from the trial court’s ruling that the
“Exclusionary Rule Reform Act” did not apply retroactively to this case.



                                               8
                                         II. Analysis

       On appeal, the State contends that the “Exclusionary Rule Reform Act” (“the Act”)
should apply retroactively to the Defendant’s case, arguing that the Act is procedural and
poses no ex post facto concern. The Defendant disagrees, contending that the trial court
correctly found that because the legislature had not indicated an intention for the amendment
to apply retroactively, the amendment should not be applied to his case. The Defendant also
argues that retroactive application of the Act would violate constitutional protections against
ex post facto laws. We agree with the Defendant on both arguments.

        Under the Tennessee Constitution, “no retrospective law . . . shall be made.” Tenn.
Const. art. 1, § 20. Therefore, unless the legislature clearly indicates otherwise, statutes are
presumed to operate prospectively. State v. Hanners, 235 S.W.3d 609, 612 (Tenn. Crim.
App. 2007) (citing) Nutt v. Champion Int’l Corp., 980 S.W.2d 365, 368 (Tenn. 1998).
Statutes that are remedial or procedural in nature, however, may be applied retroactively to
causes of action arising before the acts became law and to suits pending when the legislation
took effect. Id. (citing In re D.A.H., 142 S.W.3d 267, 273 (Tenn .2004)). “The distinction
between substantive and procedural law has long been recognized by the courts of this state.”
 State v. Hutchison, 898 S.W.2d 161, 176 (Tenn. 1994); cf. State v. Odom, 137 S.W.3d 572,
581 (Tenn. 2004) (citing Hutchison and stating “Although the distinction between
substantive and procedural law has been recognized by the courts of this state, we have not
applied this distinction in capital sentencing.”).

        Remedial statutes are defined as “‘[l]egislation providing means or method whereby
causes of action may be effectuated, wrongs redressed and relief obtained . . . .’” Hanners,
235 S.W.2d at 612 (citing Nutt, 980 S.W.2d at 368). Similarly, a procedural statute is one
that addresses the mode or proceeding by which a legal right is enforced. Id. (citing Saylors
v. Riggsbee, 544 S.W.2d 609, 610 (Tenn. 1976)). However, “even a procedural or remedial
statute may not be applied retroactively if it impairs a vested right or contractual obligation.”
Id. (citing In re D.A.H., 142 S.W.3d at 273). “A vested right is . . . a right which is proper
for the state to recognize and protect and of which [an] individual [can] not be deprived
arbitrarily without injustice.” Id. In the case presently before us, arguably, the Act is
procedural or remedial. It, however, cannot be properly applied to the Defendant’s case if
it impairs a vested right, implicating constitutional protections against ex post facto laws.

       Applying a statute retroactively in a criminal case may implicate constitutional
prohibitions against ex post facto laws, which are forbidden under both the United States and
Tennessee Constitutions. U.S. Const. art. 1, § 10, cl. 1 (“No State shall . . . pass any . . . ex
post facto Law . . . .”); Tenn. Const. art. I, § 11 (“[L]aws made for the punishment of acts
committed previous to the existence of such laws, and by them only declared criminal, are

                                               9
contrary to the principles of free government; wherefore no ex post facto law shall be
made.”). In Miller v. State, 584 S.W.2d 758 (Tenn. 1979), our Supreme Court noted that
there are five classifications of ex post facto laws: (1) a law that provides for the infliction
of punishment upon a person for an act done which, when it was committed, was innocent;
(2) a law that aggravates a crime or makes it greater than when it was committed; (3) a law
that changes punishment or inflicts a greater punishment than the law annexed to the crime
when it was committed; (4) a law that changes the rules of evidence and receives less or
different testimony than was required at the time of the commission of the offense in order
to convict the offender; and (5) every law which, in relation to the offense or its
consequences, alters the situation of a person to his disadvantage.1 Id. at 761 (citing State v.
Rowe, 116 N.J.L. 48, 181 A. 706 (1935)); see Odom, 137 S.W.3d at 582.

       We conclude that the Act cannot be applied to the Defendant’s case for several
reasons. First, the Act does not contain any indication by the Legislature that it should be
applied retroactively. Second, in our view, the retroactive application of the Act violates the
Defendant’s Tennessee constitutional protection against ex post facto laws because it alters
the Defendant’s situation to his disadvantage. See Miller 584 S.W.2d at 761; Odom, 137
S.W.3d at 582. Before the Act’s enactment, the Defendant’s “situation” under the law
applicable at that time included that the evidence against him must be suppressed because
of the mistake contained in the search warrant. See Hayes, 337 S.W.3d at 235. After the
enactment of the Act, that same evidence would be admissible against him. T.C.A. § 40-6-
108(a) (stating “evidence . . . shall not be suppressed as a result of any violation of this part
or any violation of the Tennessee Rules of Criminal Procedure Rule 41 if the court
determines that such violation was a result of a good faith mistake or technical violation
made by a law enforcement officer, court official, or the issuing magistrate as defined in
subsection (c)”). This clearly places the Defendant at a disadvantage, and application of the
Act to his case would, therefore, violate constitutional protections against ex post facto laws.

        We cannot agree with the State’s assertion that the Defendant’s “situation” being
altered to his disadvantaged must relate to the offense or the punishment. In Hanners, this
Court addressed whether the legislative amendment to the expungement statute could
nevertheless be applied in the appellant’s case to bar expungement when he would have been
entitled to expungement at the time of his conviction and sentencing. We held:

        1
         The Tennessee Supreme Court also indicated in Miller that the Ex Post Facto Clause of the
Tennessee Constitution has a broader reach and provides more protection than its federal counterpart. See
Miller, 584 S.W.2d at 760-61; see also State v. Larry Wade Gibson, No. E2003-02102-CCA-R3-CD, 2004
WL 2827000, at *3 (Tenn. Crim. App., at Knoxville, Dec. 9, 2004), perm. app. denied (Tenn. Mar. 21, 2005).
Therefore, whether a person is “disadvantaged” by the law is a valid inquiry in a Tennessee ex post facto
analysis; whereas, the federal analysis has shifted away from this more lenient standard. See Collins v.
Youngblood, 497 U.S. 37, 46-52 (1990).

                                                   10
               [I]n our view, the retroactive application of the amended expungement
       statute violates the appellant’s constitutional protection against ex post facto
       laws because at minimum it offers a situation disadvantageous to the appellant
       by unduly burdening him with the societal stigma attached to a felony. See
       Adler, 92 S.W.3d at 402 (noting that the purpose of the expungement statute
       is “to prevent a citizen from bearing the stigma of having been charged with
       a criminal offense, where he was acquitted of the charge”); Doe, 588 S.W.2d
       at 552 (stating that “[i]t is common knowledge that the preferment of charges
       against a citizen can have a severe impact upon his reputation, regardless of
       whether or not a conviction results”); see State v. Anderson, 12 Kan. App. 2d
       342, 744 P.2d 143 (1987) (stating that retroactive application of change in
       expungement statute to deny defendant the opportunity to expunge his criminal
       record disadvantaged him and constituted punishment, and thus, was an ex
       post facto violation); but see State v. T.P.M., 460 A.2d 167, 189 N.J. Super.
       360 (N.J. Super. Ct. App. Div. 1983) (stating that retroactive application of
       change in expungement statute to deny defendant the opportunity to expunge
       his criminal record was not violation of ex post facto clause because the
       “existence of a criminal record is simply a fact of life, not part of the sentence
       and punishment”).

Hanners, 235 S.W.3d at 613-14. In line with this reasoning, we reject the State’s argument
that the Act should apply retroactively because it does not disadvantage the Defendant’s
“situation” with respect to the offense or punishment.

                                       III. Conclusion

        After a thorough review of the record before this Court, we hold that retroactive
application of the Act to the Defendant’s case would violate constitutional protections against
ex post facto laws. The Act also contains no indication by the Legislature of the intent that
it should be applied retroactively. As such, we affirm the trial court’s judgment granting the
Defendant’s motion to suppress.


                                                    _________________________________
                                                     ROBERT W. WEDEMEYER, JUDGE




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