                                                                                               11/07/2019
           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT NASHVILLE
                     Assigned on Briefs July 24, 2018, at Knoxville

             STATE OF TENNESSEE v. JAMIE TODD BIRDWELL

                  Appeal from the Circuit Court for Robertson County
           Nos. 74CC2-2017-CR-290, 74CC2-2017-CR-3, 74CC2-2016-CR-266,
                   74CC2-2015-CR-708        Jill Bartee Ayers, Judge
                       ___________________________________

                            No. M2017-01620-CCA-R3-CD
                        ___________________________________

On November 15, 2016, Defendant, Jamie Todd Birdwell,1 pled guilty to Class D felony
theft of property valued at $1,000 or more but less than $10,000 in case number 74CC4-
2015-CR-708 and to three counts of Class A misdemeanor theft of property in case
number 74CC2-2016-CR-266. The plea agreement provided that Defendant would be
sentenced to twelve years as a career offender with the manner of service to be
determined following a sentencing hearing. Defendant failed to appear for his January
13, 2017 sentencing hearing, a capias was issued for his arrest, and he was subsequently
indicted for felony failure to appear. Defendant’s initial counsel then withdrew. After
three other attorneys were appointed and two were allowed to withdraw, trial counsel
entered a notice of appearance and filed a motion to withdraw Defendant’s guilty pleas.
Following a hearing on June 12, 2017, the trial court denied Defendant’s motion to
withdraw his guilty pleas and set a sentencing hearing. On appeal, Defendant asserts that
the trial court erred in denying his motion to withdraw his guilty pleas because the trial
court, defense counsel, and prosecutor were all under the mistaken impression at the
guilty plea submission hearing that Defendant was facing a sentence of twelve years as a
career offender for Class D Felony theft, rather than six years for a Class E felony theft,
because the value of theft statute, Tennessee Code Annotated section 39-14-105, became
effective January 1, 2017, before the date of his original sentencing hearing. After a
thorough review of the facts and applicable case law, we affirm the trial court’s denial of
the motion to withdraw Defendant’s guilty pleas.

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

       1
         The indictment in case number 74CC4-2015-CR-708 had Defendant’s first name as “Jammie.”
He was referred to as “Jamie” in the other indictments and elsewhere in the technical record. For
purposes of consistency and clarity, we will use “Jamie.”
ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which J. Ross Dyer,
JJ., joined. NORMA MCGEE OGLE, J., concurred in results only.

Benjamin K. Dean, Springfield, Tennessee, for the appellant, Jamie Todd Birdwell.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
John W. Carney, District Attorney General; and Jason White, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                       OPINION

                         Factual and Procedural Background

                            Guilty Plea Submission Hearing

       On the morning of his scheduled jury trial, November 14, 2016, Defendant entered
an “open plea” to theft of property valued at $1,000 or more but less than $10,000 in case
number 74CC4-2015-CR-708 and to three counts of Class A misdemeanor theft of
property in the value of $500 or less in case number 74CC2-2016-CR-266. The State
announced and Defendant acknowledged that, pursuant to the terms of the plea
agreement, Defendant would be sentenced to twelve years as a career offender in case
number 74CC4-2015-CR-708 and to concurrent eleven month and twenty-nine day
sentences in case number 74CC2-2016-CR-266 with the method and manner of service to
be determined at a sentencing hearing.

      The State offered the following as the factual basis for Defendant’s guilty pleas:

             The proof, Your Honor, would show as to the felony case, [74CC4-
      2015-CR-708], that on August 21st, 2015, the victim, Mr. Shields, was
      working at Unarco, working the second shift and when he came out from
      work, his vehicle, a 2000 Pontiac was taken and gone. The proof would
      show that a Mr. Robertson was walking around the Waffle House around
      4:30, 5 o’clock and he knows [Defendant] and [Defendant] stopped and
      asked him if he wanted a ride and he got in the car and they drove around
      about maybe a block to the Piggy Pit. At that point, [Defendant] asked him
      if he wanted the car and told him that the car was stolen and [Paul]
      Robertson said no, thank you and got out of the car. At that point, he
      observed [Defendant] get out of the car, open the trunk and take a suitcase
      out of the car. The victim would testify that his kids’ clothes, the kids had

                                          -2-
      just been visiting and his kids’ clothes and suitcase were in the trunk. That
      would be consistent with the victim’s testimony.

             The police came to the scene and located the car. When the police
      got there, Mr. Robertson came up to them and told them what he knew. As
      well, they observed blood on the passenger and the driver’s side. It was
      swabbed by Officer Richards. The victim would testify that the blood and
      some damage to the vehicle w[ere] not there when he went into work.
      [Defendant], after a motion was filed in the [c]ourt, agreed to give a sample
      of his DNA and that was tested by Laura Boos (phonetic) and she would
      indicate that the blood found in the vehicle does match [Defendant]’s DNA
      and it is basically a one in one billion outside the world population, Your
      Honor, match. So it was an exact match. That would be the proof. And
      also, Mr. Shields would testify that he had just recently bought the car and
      had paid seventeen hundred dollars for it and that there was no significant
      damage to lower that value between the time he bought it and the time it
      was stolen, so it would clearly show that it was a theft over a thousand.

             As to the theft cases, Your Honor, on February 3rd, 2016,
      [Defendant] went into the Belk. You can see him on video taking a box of
      perfume and sticking it in his coat and walking out. He did the same thing
      on February 9th. Went in and took two more boxes of Polo cologne on this
      occasion, and stuck it in his jacket and walked out and at this point, loss
      prevention officer Daniel Rich (phonetic), of Belk, observed the videos and
      called the police and Officer Clinard immediately recognized [Defendant]
      and said that’s [Defendant].

             Warrants were taken out for those two and then on February 19th,
      Officer Rich was on duty, saw [Defendant] in the store and started
      observing him and then he saw him take another bottle of red Polo. As
      [Defendant] exited the store, Officer Rich stopped him and called the police
      and then [Defendant] did admit to all thefts, Your Honor.

        The trial court addressed Defendant about the list of requirements and rights set
forth in Tennessee Rule of Criminal Procedure 11(b)(1), and Defendant acknowledged
that he understood his rights, that he had reviewed the two plea petitions with trial
counsel, and that he understood that by pleading guilty he was waiving his right to a jury
trial. Defendant stated that he understood that his sentence would be twelve years with
sixty percent release eligibility with the trial court to determine the manner of service.
The trial court found that Defendant knowingly and voluntarily entered his plea and set
the sentencing hearing for 9:00 a.m. on January 13, 2017.
                                          -3-
        Defendant failed to appear at the sentencing hearing, and a capias was issued for
his arrest. On January 18, 2017, the Robertson County Grand Jury indicted Defendant in
case number 74CC4-2017-CR-3 for felony failure to appear. Defendant was later
apprehended.

                             Motion to Withdraw Guilty Plea

       On April 4, 2017, Defendant filed a motion to withdraw his guilty pleas in case
numbers 4CC4-2015-CR-708 and 74CC2-2016-CR-266. On April 19, 2017, the
Robertson County Grand Jury indicted Defendant in case number 74CC2-2017-CR-290
for theft of property under the value of $500.

       The motion to withdraw guilty plea was argued on June 12, 2017. At the
beginning of the hearing, the parties announced they had reached an agreement as to the
pending cases against Defendant. Defendant then entered a guilty plea to theft of
property under the value of $500 in 74CC2-2017-CR-290 and a plea of nolo contendere
to misdemeanor failure to appear in case number 74CC2-2017-CR-3.

        Concerning the grounds for withdrawal of his pleas, Defendant testified that
initially he believed that he “was settling for a four-year sentence, open plea to the
judge.” He said that, after his attorney spoke with the State, he was advised that the offer
was a sentence of twelve years with release eligibility after service of sixty percent of the
sentence with the trial court to determine the manner of service. Defendant stated that he
“reluctantly” pled guilty because his DNA had been found in the stolen vehicle and
because defense counsel had advised him that he would likely be found guilty at trial.
Defendant testified that Mr. Robertson actually stole the vehicle and that he cut his arm
on the passenger side of the vehicle when he rode in the vehicle with Mr. Robertson.

        On cross-examination, Defendant agreed that he had an extensive criminal history
and that he had been to court numerous times to plead guilty. Defendant also agreed that
he was aware of Mr. Robertson’s potential testimony at trial based on the State’s
recitation of facts at the guilty plea submission hearing. Defendant asserted that he had
“no choice” but to plead guilty because he was “mis[led] to believe [that] [he] was going
to be looking at [twelve] years in front of a jury.”

       Defendant’s first defense counsel stated that she was appointed to represent
Defendant. She received discovery and a notice from the State showing that Defendant
was a career offender for the Class D felony theft in case number 74CC4-2015-CR-708.
She said that the State’s initial offer was a four-year sentence with the manner of service
to be determined by the trial court but that the State withdrew that offer “long before” the
guilty plea submission hearing because Defendant received a new theft charge from
                                            -4-
“Belk.” She testified that, initially, Defendant did not want to plead guilty in case
number 74CC4-2015-CR-708 but that two things occurred that resulted in Defendant
seeking a new a plea offer from the State. The first was the new theft charge. The
second had to with Mr. Robertson’s availability to testify for the State. Defense counsel
explained that, as of the day before Defendant’s trial, the State had not been able locate
Mr. Robertson. She stated that Defendant told her “that he thought the victim . . . was
from a foreign country and was not going to be found, was not going to show up.”
Defendant hoped that the State would nolle prosequi the charge. However, when Mr.
Robertson arrived at court on the day of trial, Defendant asked his counsel to seek
another plea offer from the State. The new offer led to a guilty plea by Defendant with
an agreed sentence of twelve years as a career offender with the manner of service to be
determined by the trial court. The State also agreed that Defendant could remain out on
bond until sentencing.

      First defense counsel stated that Defendant failed to appear at the scheduled
sentencing hearing and that she was allowed to withdraw as counsel.

      The following exchange occurred during the parties’ arguments near the
conclusion of the hearing on the motion to withdraw Defendant’s guilty plea:

              [FIRST DEFENSE COUNSEL]: Additionally, Your Honor, I’d also
      point out there’s -- these sentencing issues; we’ve just had this change in
      the theft statute, and I don’t -- probably nobody even thought about the time
      this went down the grading of theft and how that could have [a]ffected his
      plea. I think we’re still faced with that going forward and -- if he’s not
      allowed to withdraw his plea. The value of this vehicle is -- I believe it’s
      between a thousand and [fifteen] hundred dollars, and the new grade in the
      theft statute, that could have really changed even what he thought was --
      probably he was facing when he pled guilty to this.

      ....

             [THE STATE]: I’ve thought about that theft law as well, Your
      Honor, but here’s the point: Your Honor had set the sentencing for January
      and so he was going to get the benefit of that reduction, because it does go
      for punishment. It say[s] punishment. It’s -- whether Your Honor denies
      his motion or grants his motion and we try it he’s looking at six[ ]years at
      [sixty percent release eligibility]. It’s not a situation where he was
      sentenced in December and then -- well, it would have been if you had
      delayed to January[,] he would have got the reduction. He gets the
      reduction either way because the sentencing was not set until January, then
                                          -5-
      he didn’t show. So he gets that reduction either way. So I don’t think the
      change in the law [a]ffects his guilty plea, because it’s there whether you
      grant it or you don’t grant it. There’s under -- you apply the law, though,
      under Powell, there’s nothing that shows, under these seven factors, that it
      was fair and just reason and ask that you deny it.

       The trial court stated that it “had already concluded that [Defendant] gets the
benefit of the reduction in the law regardless of what we do here today.”

       The trial court then addressed Tennessee Rule of Criminal Procedure 32(f), which
governs withdrawal of guilty pleas, and the factors set out in State v. Phelps, 329 S.W.3d
436, 443 (Tenn. 2010), that a trial court should consider in determining whether to allow
a guilty plea to be withdrawn. The court noted that four months elapsed between
Defendant’s guilty pleas and the filing of his motion to withdraw the guilty pleas. The
court also noted that Defendant failed to attend the sentencing hearing, which was
scheduled approximately sixty days after the guilty plea submission hearing. The trial
court found that Defendant’s claimed reason for failing to move to withdraw his guilty
pleas earlier–that several attorneys had been appointed and then withdrawn from his
case–was not a valid reason justifying delay. The trial court found that this was not a
“compelling factor.” The trial court noted that the State gave a recitation of the facts at
the guilty plea submission hearing and that Defendant agreed to those facts. The court
noted that Defendant “asserted his innocence for the first time at the current hearing.”
The trial court found that Defendant was “very experienced with the legal system and
ha[d] taken pleas, taken cases to trial[.]” The trial court found that Defendant had “the
background to understand what he was doing” when he pled guilty. The trial court stated
that Defendant’s “change of heart” was “not a sufficient ground to set aside the guilty
plea.” The trial court stated that it did not find Defendant’s “story today very credible”
and denied Defendant’s motion to withdraw his guilty plea.

                                   Sentencing hearing

       At the sentencing hearing on July 13, 2017, the trial court noted that, under the
terms of Defendant’s plea agreement, he was to be sentenced to twelve years as a career
offender in case number 74CC4-2015-CR-708. However, Defendant and the State
agreed that Defendant should receive a six-year sentence, with the manner of service
determined by the trial court.

       The trial court stated that it had considered the evidence presented at the
sentencing hearing, the presentence report, the principles of Tennessee Code Annotated
section 40-35-103, “the nature of the criminal conduct that was involved in these four
cases, and the statistical information” gathered by the Administrative Office of the
                                           -6-
Courts. The trial court found that Defendant had “an extensive criminal history as a
career offender.” The trial court considered Defendant’s medical records but noted that
Defendant’s previous periods of incarceration “obviously[] had no impact at all on
curbing his criminal behavior.” The trial court stated that Defendant had “a complete
lack of potential for any kind of rehabilitation.” The trial court ordered Defendant to
serve his six-year sentence in case number 74CC4-2015-CR-708 in confinement. The
trial court also ordered Defendant’s sentences of eleven months and twenty-nine days in
case number 74CC2-2016-CR-266 to run concurrently to each other and to Defendant’s
six-year sentence in case number 74CC4-2015-CR-708. Additionally, the trial court
ordered Defendant’s sentences in case numbers 74CC2-2017-CR-290 and 74CC2-2017-
CR-3 to run concurrently with Defendant’s six-year sentence.

       Defendant filed a notice of appeal on August 10, 2017.

                                         Analysis

       Defendant asserts that the trial court abused its discretion by denying his motion to
withdraw his guilty pleas because “the [t]rial [c]ourt did not consider or discuss the fact
that . . . Defendant, [t]rial [c]ourt, and [prosecutor] were all under the mistaken
impression he was facing [twelve] years as a Career Offender at a sentencing hearing and
was pleading guilty to a Class D Felony” at the guilty plea submission hearing. The State
contends that “the trial court properly considered the nonexclusive factors in light of the
evidence presented at the hearing on the motion to withdraw the plea and [D]efendant’s
sworn testimony at the plea hearing and properly found that the factors all weighed
against [D]efendant.”

                                   Standard of Review

        We review a trial court’s decision on a defendant’s motion to withdraw a guilty
plea for an abuse of discretion. State v. Phelps, 329 S.W.3d 436, 443 (Tenn. 2010). “A
trial court abuses its discretion when it applies incorrect legal standards, reached an
illogical conclusion, bases its ruling on a clearly erroneous assessment of the proof, or
applies reasoning that causes an injustice to the complaining party.” Id. (citing State v.
Jordan, 325 S.W.3d 1, 38-40 (Tenn. 2010)).

                      Tennessee Rule of Criminal Procedure 32(f)

       Tennessee Rule of Criminal Procedure 32(f) provides that, “[b]efore sentence is
imposed, the court may grant a motion to withdraw a guilty plea for any fair and just
reason.” Tenn. R. Crim. P. 32(f)(1). Under this rule, a defendant who has pleaded guilty

                                           -7-
may withdraw his or her guilty plea prior to sentencing by establishing a “fair and just
reason for allowing the withdrawal[.]” Phelps, 329 S.W.3d at 451.

                                     Phelps Factors

        In Phelps, the Tennessee Supreme Court applied “a non-exclusive multi-factor
test” to be used in determining if there are fair and just reasons to allow withdrawal of a
guilty plea. Id. Our supreme court in Phelps noted that “the federal courts have
continued to elucidate the ‘rough guidelines’ for determining ‘fair and just’” reasons for
allowing a defendant to withdraw a guilty plea before sentencing. Id at 446. The
supreme court specifically provided the following a non-exclusive list of factors for a
trial court to consider in determining if fair and just reasons have been established:

       [1] length of time between entry of plea and filing of motion to withdraw it;
       [2] why grounds for withdrawal were not presented earlier; [3] whether
       defendant has asserted and maintained his innocence; [4] circumstances
       underlying entry of plea; [5] nature and background of defendant; [6]
       whether defendant has admitted guilt; and [7] whether prosecution will be
       prejudiced should plea be withdrawn.

Id. at 447. The supreme court held that “where a trial court applies the correct non-
exclusive multi-factor analysis and determines that the balance of factors weighs in the
defendant’s favor, the trial court should allow the defendant to withdraw his plea, even if
the defendant’s reasons could be characterized as a ‘change of heart.’” Id. at 448. The
court noted however, “a defendant should not be allowed to pervert this process into a
tactical tool for purposes of delay or other improper purpose.” Id.

       Here, Defendant entered his guilty plea on November 15, 2016, and moved to
withdraw his guilty pleas on April 3, 2017. Although he filed the motion to withdraw his
guilty pleas before he was sentenced, he filed the motion almost three months after he
failed to appear for the January 13, 2017 sentencing hearing. The transcript of the
hearing on Defendant’s motion to withdraw his guilty pleas reflects that the trial court
addressed the Phelps factors, concluded that the balance of factors weighed against
Defendant, and found Defendant had not established fair and just reasons to set aside the
guilty plea.

       Regarding the first Phelps factor, the trial court noted that four months elapsed
between Defendant’s guilty pleas and the filing of his motion to withdraw the guilty
pleas. The trial court noted that this four-month period was “a long period of time, and
during that period of time [Defendant] failed to show up for the sentencing hearing[.]”
On appeal, Defendant asserts that this factor is neutral. We disagree. Our supreme court
                                           -8-
has previously concluded that a seven-week period between the guilty plea and the
motion to withdraw the plea was “a significant length of time” that “weigh[ed] somewhat
against [d]efendant.” Id. at 449. The trial court did not abuse its discretion in
determining that this factor weighed against setting aside Defendant’s guilty pleas.

       Regarding the second Phelps factor, the trial court noted that Defendant claimed
that the reason he failed to move to withdraw his guilty pleas earlier was the fact that
several attorneys had been appointed and then allowed to withdraw from his case. The
technical record reveals that first defense counsel withdrew in January 2017 after
Defendant failed to appear at the sentencing hearing. The trial court appointed second
defense counsel and set a new hearing date for March 2017. Second defense counsel
withdrew from the case in February 2017 because Defendant “disagree[d] with what
[c]ounsel fe[lt] [wa]s the best strategic method to his representation” and Defendant
“expressed to [c]ounsel his intent that [second defense counsel] no longer represent him,
and if still obligated, all future legal advice [would] not be considered.” The trial court
appointed third defense counsel on February 24, 2017. Third defense counsel withdrew
on March 9 because, “[a]fter meeting with Defendant, it has been determined that the
desired course of action, while legal for Defendant, would put [third defense counsel] in
conflict with the Rules of Professional Responsibility.” Trial court appointed fourth
defense counsel on March 13, 2017. Without waiting for fourth defense counsel to
withdraw, trial counsel filed a notice of appearance in Defendant’s case on March 30 and
filed Defendant’s motion to withdraw his guilty pleas on April 4. The trial court found
the turnover in counsel was not a valid reason for Defendant’s failure to move to
withdraw his guilty pleas earlier in the proceedings but that Defendant’s failure to present
grounds for withdrawal earlier was not a “compelling factor” to deny Defendant’s motion
to withdraw his guilty plea. The trial court did not abuse its discretion in determining
that Defendant’s failure to move to withdraw his guilty pleas earlier, although not
compelling, weighed against setting aside Defendant’s guilty pleas.

       Regarding the third and sixth Phelps factors, the trial court noted that the State
gave a recitation of the facts at the guilty plea submission hearing and that Defendant
agreed to the factual basis provided by the State. The trial court found that because
Defendant only asserted his innocence when he sought to withdraw his guilty pleas, these
factors weighed against Defendant. The trial court did not abuse its discretion in
determining that these factors weighed against setting aside Defendant’s guilty pleas.

       Regarding the fourth and fifth Phelps factors, the trial court found that Defendant
was “very experienced with the legal system and ha[d] taken pleas, taken cases to trial
and the [trial] [c]ourt f[ound] that [Defendant] ha[d] the background to understand what
he was doing that day.” Additionally, the trial court found that it fully explained
Defendant’s rights and that Defendant admitted his guilt at the guilty plea submission
                                           -9-
hearing. The trial court did not abuse its discretion in determining that these factors
weighed against setting aside Defendant’s guilty pleas.

       Concerning the seventh Phelps factor, the State made the following argument:

       Your Honor knows how hard we tried to find that victim. And we did get
       him here. We’ll do it again if we have to, but I would submit, Your Honor,
       that under all the factors he should not be allowed to withdraw his guilty
       plea[s] at this time.

Even though the trial court did not address this factor, when the record does not support
any of the other Phelps factors and there is no fair and just reason for allowing the guilty
plea to be withdrawn, it is not necessary for the trial court or this court to consider
prejudice to the State. Id. at 451; State v. Tipton, No. E2012-00038-CCA-R3-CD, 2013
WL 1619430, at *14 (Tenn. Crim. App. Apr. 13, 2013).

        The trial court did not abuse its discretion in determining that there was no fair and
just reason for allowing Defendant to withdraw his guilty plea.

                               The Criminal Savings Statute

      Defendant argues that the trial court, defense counsel, and prosecutor were
confused about the sentence he was facing at the guilty plea submission hearing.
Appellate courts have disagreed concerning whether the 2016 amendment of section 39-
14-105(a) applies to offenses committed before January 1, 2017. That question should be
answered in the near future by our supreme court. This court previously held that:

       Section 5 of the Public Safety Act does not provide a lesser punishment for
       Class D felony theft committed before January 1, 2017, and therefore, the
       criminal savings statute is not applicable so as to lessen the punishment for
       theft offenses committed before the effective date of the act even if a
       defendant is sentenced after the effective date.




                                            - 10 -
State v. Ashley N. Menke, No. M2017-00597-CCA-R3-CD, 2018 WL 2304275, at *13
(Tenn. Crim. App. May 21, 2018), perm. app. granted (Tenn. Oct. 11, 2018).2 Based on
Ashley N. Menke, Defendant faced a twelve-year sentence and should not have received
the lesser six-year sentence under the criminal savings statute, Tennessee Code
Annotated section 39-11-112.

       However, unlike the judgment in Ashley N. Menke which provided an illegal
eleven month and twenty-nine day sentence for a Class D felony, the judgments of
conviction in this case do not provide an illegal sentence. Defendant’s six-year sentence
for Class E felony theft is authorized by the applicable statute. See Tenn. Code Ann. §
40-35-111(b)(5) (2016); Tenn. R. Crim. P. 36.1. By agreeing to entry of a judgment of
conviction sentencing Defendant to a six-year sentence for a Class E felony in case
number 74CC4-2015-CR-708, Defendant has rendered this argument moot.

                                              Conclusion

       Defendant did not establish a “fair and just reason” for allowing the withdrawal of
his guilty pleas, and his sentence is not illegal. Accordingly, we affirm the trial court’s
denial of the motion to withdraw Defendant’s guilty pleas.


                                                     ____________________________________
                                                     ROBERT L. HOLLOWAY, JR., JUDGE




        2
          We note that other opinions from this court have concluded that the amendment to section 39-
14-105(a) alters the punishment for theft and, therefore, the criminal savings statute applies. See State v.
Michael Eugene Tolle, No. E2017-00571-CCA-R3-CD, 2018 WL 1661616, at *10 (Tenn. Crim. App.
Mar. 19, 2018), perm. app. filed; State v. Charles Keese, No. E2016-02020-CCA-R3-CD, 2018 WL
1353697, at *11 (Tenn. Crim. App. Mar. 15, 2018), perm. app. filed; State v. Steven Swinford, No.
E2017-01164-CCA-R3-CD, 2018 WL 1831126, at *9-10 (Tenn. Crim. App. Apr. 17, 2017), no perm.
app. filed.
                                                  - 11 -
