[Cite as State ex rel. Suwalski v. Peeler, 2020-Ohio-3233.]




                                      IN THE COURT OF APPEALS

                             TWELFTH APPELLATE DISTRICT OF OHIO

                                             WARREN COUNTY




 STATE OF OHIO EX REL.,                                   :
 JAMIE SUWALSKI,
                                                          :   CASE NO. CA2019-05-053
        Relator,
                                                          :        OPINION
                                                                    6/8/2020
     - vs -                                               :

                                                          :
 JUDGE ROBERT W. PEELER,
                                                          :
        Respondent.



                                ORIGINAL ACTION FOR PROHIBITION


Ohio Crime Victim Justice Center, Elizabeth Well, 3976 North Hampton Drive, Powell, Ohio
43065, for relator

Ohio Domestic Violence Network, Micaela Deming, P.O. Box 176, Bluffton, Ohio 45817, for
relator

Michael Greer, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio
45011, for respondent

Repper, Pagan, Cook, Ltd., Christopher J. Pagan, 1501 First Avenue, Middletown, Ohio
45044, for intervenor



        S. POWELL, J.

        {¶ 1} This case involves a review of a petition for a writ of prohibition filed by relator,

Jamie Suwalski. Suwalski filed her petition with this court on May 28, 2019. After being
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granted an extension, respondent, the Honorable Robert W. Peeler with the Warren County

Court of Common Pleas, filed an answer to Suwalski's petition on August 14, 2019. On

August 29, 2019, Suwalski's ex-husband, Roy Ewing, who this court permitted to intervene

in this case on August 5, 2019, also filed an answer to Suwalski's petition.

        {¶ 2} On December 9, 2019, the parties filed a joint stipulated statement of facts.

Shortly thereafter, on December 13, 2019, Suwalski filed a brief in support of her petition.

To this, Ewing filed a response brief on January 27, 2020 with Judge Peeler filing his own

response brief on February 12, 2020. Suwalski then filed a reply brief on February 21,

2020. This case was originally scheduled to be submitted to the court following oral

argument. However, due to the impact of the COVID-19 pandemic, this matter was instead

submitted to the court without oral argument on May 4, 2020.

        {¶ 3} The matter now properly before this court, Suwalski seeks a writ of prohibition

to prevent Judge Peeler from relieving Ewing of the federal firearms disability imposed upon

him under 18 U.S.C. 922(g)(9). Pursuant to that statute, it is unlawful for any person "who

has been convicted in any court of a misdemeanor crime of domestic violence" to ship,

transport, possess, or receive "any firearm or ammunition" in or affecting commerce.1 For

the reasons outlined below, Suwalski's petition is hereby granted as Judge Peeler does not

have the judicial power under Ohio law, specifically R.C. 2923.14, to relieve Ewing of the

federal firearms disability imposed upon him under 18 U.S.C. 922(g)(9).2

                                  Facts and Procedural History




1. As discussed more fully below, Ewing was convicted of domestic violence in violation of R.C. 2919.25(A).
There is no dispute that Ewing's misdemeanor domestic violence conviction qualifies as a "misdemeanor
crime of domestic violence" subject to a federal firearms disability imposed under 18 U.S.C. 922(g)(9).

2. This case does not address whether Judge Peeler had the judicial power to relieve Ewing of any state
firearms disability imposed under R.C. 2923.13(A)(1) thru (5) resulting from his misdemeanor domestic
violence conviction. For a discussion on that issue, see this court's decision in Terry v. Ohio, 12th Dist.
Clermont No. CA2016-11-078, 2017-Ohio-7805.
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        {¶ 4} On April 7, 2017, Ewing was found guilty of domestic violence in violation of

R.C. 2919.25(A), a first-degree misdemeanor. There is no dispute that Suwalski was the

victim of this domestic violence incident. After being found guilty, Ewing was sentenced to

serve 20 days in jail, with ten of those days suspended, placed on one year of nonreporting

probation, and ordered to pay a fine. Ewing then appealed.

        {¶ 5} In support of his appeal, Ewing argued that the trial court erred when it

prohibited him from cross-examining Suwalski about an alleged "safecracking" incident.

This, according to Ewing, would have revealed Suwalski's motive to lie in order to get him

out of their house so that she could gain leverage over him in their upcoming divorce.

Finding no merit to Ewing's claim, this court affirmed Ewing's conviction in State v. Ewing,

12th Dist. Warren Nos. CA2017-05-062 and CA2017-05-063, 2018-Ohio-451. The Ohio

Supreme Court thereafter declined review. 06/06/2018 Case Announcements #2, 2018-

Ohio-2155.

        {¶ 6} On February 5, 2019, Ewing filed an application for relief from the federal

firearms disability imposed upon him under 18 U.S.C. 922(g)(9).3 Ewing filed his application

under R.C. 2923.14(A), which provides that "any person who is prohibited from acquiring,

having, carrying, or using firearms may apply to the court of common pleas in the county in

which the person resides for relief from such prohibition." Ewing supported his application

by noting the fact that "his community-control terms were fully discharged; and he has not

recidivated." Ewing also noted that he "is a retired police officer with training and experience

with the responsible use and handling of a firearm." Therefore, because there was "ample


3. In 1996, Congress enacted 18 U.S.C. 922(g)(9) after recognizing that existing "felon-in-possession laws"
were not "keeping firearms out of the hands of domestic abusers, because 'many people who engage in
serious spousal or child abuse ultimately are not charged with or convicted of felonies.'" United States v.
Hayes, 555 U.S. 415, 426, 129 S.Ct. 1079 (2009), quoting 142 Cong. Rec. 22985 (1996) (statement of Sen.
Lautenberg). "By extending the federal firearm prohibition to persons convicted of 'misdemeanor crime[s] of
domestic violence,' proponents of [18 U.S.C. 922(g)(9)] sought to 'close this dangerous loophole.'" Id., quoting
142 Cong. Rec. at 22986.
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evidence of rehabilitation" exhibited by his "upstanding behavior" following his conviction

for misdemeanor domestic violence, Ewing requested "his firearm rights" be restored so

that he could "resume his private security business and to engage in outdoor recreational

sport of hunting with his friends and family."

       {¶ 7} On April 23, 2019, Judge Peeler held a hearing on Ewing's application. Ewing

testified at this hearing. As part of his testimony, Ewing claimed that the federal firearms

disability imposed upon him under 18 U.S.C. 922(g)(9) had negatively impacted his private

security business, his federal firearms license, as well as his ability to possess a firearm for

personal protection. Suwalski did not testify at this hearing. Suwalski, however, did provide

Judge Peeler with a statement noting her opposition to Ewing's application. Suwalski's

statement also restated the facts underlying Ewing's misdemeanor domestic violence

conviction. As this court stated in Ewing, the facts underlying Ewing's conviction are as

follows:

               On January 14, 2017, [Suwalski] called 9-1-1 after an argument
               with [Ewing] escalated and became physical. The responding
               police officers talked to [Ewing] and [Suwalski] separately.
               [Suwalski] was upset and her eyes were a little bit puffy and
               watery. [Suwalski] told one officer that [Ewing] grabbed her by
               the throat several times, grabbed her by the hair, and shoved
               her hard enough that she hit a back door, hit her head, and
               landed on the floor. The officer observed red marks on
               [Suwalski's] neck and found a lump of curly hair on the laundry
               room floor, just outside the office where the argument mostly
               took place.

Id., 2018-Ohio-451 at ¶ 2.

       {¶ 8} On April 29, 2019, Judge Peeler issued a decision granting Ewing's

application.   Judge Peeler issued his decision based on the language found in R.C.

2923.14(D). That statute provides that, upon hearing, an applicant who is prohibited from

acquiring, having, carrying, or using firearms may be entitled to relief from that prohibition

if all of the following apply:

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             (1) One of the following applies:

                    (a) If the disability is based upon an indictment, a
                    conviction, or an adjudication, the applicant has been
                    fully discharged from imprisonment, community control,
                    post-release control, and parole, or, if the applicant is
                    under indictment, has been released on bail or
                    recognizance.

                    (b) If the disability is based upon a factor other than an
                    indictment, a conviction, or an adjudication, that factor no
                    longer is applicable to the applicant.

             (2) The applicant has led a law-abiding life since discharge or
             release, and appears likely to continue to do so.

             (3) The applicant is not otherwise prohibited by law from
             acquiring, having, or using firearms.

      {¶ 9} Judge Peeler explained his decision to grant Ewing's application as follows:

             The record in this case establishes that [Ewing] had no criminal
             record prior to the 2017 conviction[] and has led a law-abiding
             life since the 2017 conviction[]. [Ewing] has been fully
             discharged from his 2017 sentence of incarceration and non-
             reporting probation. No evidence was admitted at the hearing
             that [Ewing] had any probation infractions or acted
             inappropriately while on probation. There is nothing to indicate
             that [Ewing] would not continue to live a law-abiding life, whether
             his application is granted or not. Further, the State concedes
             [Ewing] is not otherwise prohibited by law from acquiring,
             having, or using a firearm.

             While the victim of [Ewing's] past criminal conduct certainly has
             trepidations regarding [Ewing's] ability to possess firearms, the
             record reveals no evidence that [Ewing] is a risk to Ms. Suwalski
             or any other person. Ms. Suwalski admitted that she has not
             seen [Ewing] since their divorce was finalized approximately
             one year ago.

         Suwalski's Standing to Petition this Court for a Writ of Prohibition

      {¶ 10} Effective February 5, 2018, Article I, Section 10a of the Ohio Constitution,

commonly referred to as Marsy's Law, expanded the rights afforded to crime victims like

Suwalski. State v. Lee, 12th Dist. Warren No. CA2018-11-134, 2019-Ohio-4725, ¶ 12

("Marsy's Law defines the term 'victim' as 'a person against whom the criminal offense or

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delinquent act is committed or who is directly and proximately harmed by the commission

of the offense or act'"); State v. Jones, 1st Dist. Hamilton No. C-190039, 2020-Ohio-81, ¶ 9

("on February 5, 2018, the amendment to Article I, Section 10a of the Ohio Constitution,

known as Marsy's Law, became effective"); State ex rel. S.L. v. Rucker, 1st Dist. Hamilton

No. C-190248, 2020-Ohio-584, ¶ 3 ("Marsy's Law is an amendment to the Ohio Constitution

that expands the rights afforded to victims of crimes").

       {¶ 11} The expanded rights afforded to crime victims include those set forth in Article

I, Section 10a(B), which states:

              The victim, the attorney for the government upon request of the
              victim, or the victim's other lawful representative, in any
              proceeding involving the criminal offense or delinquent act
              against the victim or in which the victim's rights are implicated,
              may assert the rights enumerated in this section and any other
              right afforded to the victim by law. If the relief sought is denied,
              the victim or the victim's lawful representative may petition the
              court of appeals for the applicable district, which shall promptly
              consider and decide the petition.

       {¶ 12} Thus, by its terms, Marsy's Law authorizes Suwalski to petition this court for

a writ of prohibition under these circumstances. See Rucker ("[u]nder Marsy's Law, the

victim also has the right to 'petition' a court of appeals if the victim's rights are 'implicated'

in a criminal proceeding); see, e.g., State ex rel. Howery v. Powers, 12th Dist. Butler No.

CA2019-03-045, 2020-Ohio-2767, ¶ 14, 20 (remedy for a crime victim who was not provided

for full and timely restitution as provided under Marsy's Law was to petition this court for a

writ of mandamus directing the trial court judge to reopen sentencing "to allow relator to

enforce her constitutional right of restitution"). This holds true even though Suwalski neither

appealed from Judge Peeler's decision directly nor intervened in the action below. "The

right a victim may have to 'petition' an appellate court is not equivalent to that of a party with

a right to appeal." State v. Hughes, 8th Dist. Cuyahoga No. 107697, 2019-Ohio-1000, ¶

16. Therefore, in accordance with Marsy's Law, specifically, Article 1, Section 10(a)(B) of

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the Ohio Constitution, Suwalski has standing to petition this court for a writ of prohibition to

prevent Judge Peeler from relieving Ewing of the federal firearms disability imposed upon

him under 18 U.S.C. 922(g)(9).

                       Suwalski's Petition for a Writ of Prohibition

       {¶ 13} "Prohibition is an extraordinary writ issued by a higher court to a lower court

to restrain the unauthorized exercise of judicial power." State ex rel. Cincinnati Enquirer v.

Oda, 12th Dist. Warren No. CA2017-08-130, 2018-Ohio-704, 10, citing State ex rel. Daily

Reporter v. Court of Common Pleas of Franklin Cty., 56 Ohio St.3d 145 (1990). "Three

elements are necessary for a writ of prohibition to issue: the exercise of judicial or quasi-

judicial power, the lack of legal authority for the exercise of that power, and the lack of an

adequate remedy in the ordinary course of law." State ex rel. Barney v. Union Cty. Bd. of

Elections, Slip Opinion No. 2019-Ohio-4277, ¶ 11, citing State ex rel. Tam O'Shanter Co. v.

Stark Cty. Bd. of Elections, 151 Ohio St.3d 134, 2017-Ohio-8167, ¶ 14. Suwalski bears the

burden to demonstrate that she is entitled to the requested writ. Roberts v. Winkler, 176

Ohio App.3d 685, 2008-Ohio-2843, ¶ 11 (1st Dist.).          Therefore, for the writ to issue,

Suwalski must establish that: (1) Judge Peeler is about to exercise or has exercised his

judicial power, (2) Judge Peeler's exercise of his judicial power was not authorized by law,

and (3) denial of the writ will cause injury for which she would lack an adequate remedy in

the ordinary course of law. State ex rel. City of Cleveland v. Russo, 156 Ohio St.3d 449,

2019-Ohio-1595, ¶ 8, citing State ex rel. Elder v. Camplese, 144 Ohio St.3d 89, 2015-Ohio-

3628, ¶ 13.

       {¶ 14} Because the first and third elements are clearly satisfied, the only real issue

to be decided is whether a state court judge in Ohio, like Judge Peeler, has the judicial

power under Ohio law, specifically R.C. 2923.14, to relieve a person of a federal firearms

disability imposed under 18 U.S.C. 922(g)(9). Based on this court's research, it appears

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that this issue has not previously been addressed by any appellate court in Ohio.4 This is

true even before Marsy's Law came into effect. Therefore, because there is no Ohio case

law to refer to for guidance, Judge Peeler has instead cited to the Illinois Supreme Court's

decision in Coram v. Illinois, 2013 IL 113867.

       {¶ 15} In Coram, the Illinois Supreme Court determined that its state court judges

had the judicial power under then existing Illinois law to "override a federal [firearms]

disability, reasoning that a state's ability to restore firearm rights was necessarily implied by

Congress." Johnson v. Illinois Dept. of State Police, 2020 IL 124213, ¶ 14, citing Coram at

¶ 69 ("[g]iven the broad powers Congress has given the states to restore rights and grant

relief from federally imposed firearms disabilities, we believe the power to grant relief, or

restore rights, to those who have lost them as a result of state misdemeanor convictions is

necessarily implied"). This is because, based on the law in effect at that time, "nothing

prevented the trial court from granting relief from the federal firearms disability." People v.

Love, 2020 IL App (1st) 171437-U, ¶ 17, citing Coram at ¶ 9.

       {¶ 16} The law applied by the Illinois Supreme Court in Coram, however, has since

been amended. The current law, 430 ILCS 65/10(c), now provides:

               (c) Any person prohibited from possessing a firearm under
               Sections 24-1.1 or 24-3.1 of the Criminal Code of 2012 or
               acquiring a Firearm Owner's Identification Card under Section 8
               of this Act may apply to the Director of State Police or petition
               the circuit court in the county where the petitioner resides,
               whichever is applicable in accordance with subsection (a) of this
               Section, requesting relief from such prohibition and the Director
               or court may grant such relief if it is established by the applicant
               to the court's or Director's satisfaction that:

               (0.05) when in the circuit court, the State's Attorney has been
               served with a written copy of the petition at least 30 days before

4. We note that the Summit County Court of Common Pleas has issued a decision relieving an applicant of a
federal firearms disability imposed upon him under 18 U.S.C. 922(g)(9). However, besides citing to the
general procedures outlined in R.C. 2923.14, the common pleas court offered no other authority that would
allow it to grant the applicant's requested relief. See Perkins v. Summit County, Summit C.P. No. CV 2012-
04-2199, 2012 Ohio Misc. LEXIS 3171 (Sept. 12, 2012).
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              any such hearing in the circuit court and at the hearing the
              State's Attorney was afforded an opportunity to present
              evidence and object to the petition;

                      (1) the applicant has not been convicted of a forcible
                      felony under the laws of this State or any other
                      jurisdiction within 20 years of the applicant's application
                      for a Firearm Owner's Identification Card, or at least 20
                      years have passed since the end of any period of
                      imprisonment imposed in relation to that conviction;

                      (2) the circumstances regarding a criminal conviction,
                      where applicable, the applicant's criminal history and his
                      reputation are such that the applicant will not be likely to
                      act in a manner dangerous to public safety;

                      (3) granting relief would not be contrary to the public
                      interest; and

                      (4) granting relief would not be contrary to federal law.

       {¶ 17} Most significant is the language found in 430 ILCS 65/10(c)(4), which, as the

plain language of the statute indicates, strips Illinois state court judges of their judicial power

to relieve a person of a federal firearms disability where such relief would be contrary to

federal law. The effect of this statute precludes Illinois judges from relieving a person from

a federal firearms disability that was imposed upon that person under 18 U.S.C. 922(g)(9).

This holds true unless the underlying misdemeanor domestic violence conviction is

excluded from consideration under 18 U.S.C. 921(a)(33)(B)(ii). Or, as stated more simply

by the Illinois Supreme Court in Johnson:

              [18 U.S.C. 921(a)(33)(B)(ii)] defines a "conviction" in such a way
              as to exclude from its purview a misdemeanor crime of domestic
              violence where, as a matter of state law, "the conviction has
              been expunged or set aside" or where the misdemeanor was
              "an offense for which the person has been pardoned or has had
              civil rights restored (if the law of the applicable jurisdiction
              provides for the loss of civil rights under such an offense) unless
              the pardon, expungement, or restoration of civil rights expressly
              provides that the person may not ship, transport, possess, or
              receive firearms."

Id., 2020 IL 124213 at ¶ 23.

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        {¶ 18} The language found in 430 ILCS 65/10(c) is substantially similar to the

language found in R.C. 2923.14(D). That is to say, assuming the procedures outlined in

R.C. 2923.14 apply, see Terry, 2017-Ohio-7805, the plain language found in R.C.

2923.14(D)(3) would provide an Ohio state court judge with the judicial power to relieve a

person of a federal firearms disability imposed under 18 U.S.C. 922(g)(9) only if "[t]he

applicant is not otherwise prohibited by law from acquiring, having, or using firearms."

        {¶ 19} Under federal law, a person who has been convicted of misdemeanor

domestic violence has four mechanisms of relief from a federal firearm disability imposed

under 18 U.S.C. 922(g)(9). Stimmel v. Sessions, 879 F.3d 198, 207 (6th Cir.2018). "They

can (1) petition to set aside their conviction; (2) seek a pardon; (3) have their conviction

expunged; or (4) have their civil rights fully restored." Id. According to the parties joint

stipulation of facts, Ewing's misdemeanor domestic violence conviction has not been

expunged or set aside, nor has Ewing sought a pardoned from the Governor.5 Therefore,

Judge Peeler would have the judicial power to relieve Ewing of the federal firearms disability

imposed upon him under 18 U.S.C. 922(g)(9) only if Ewing has had his civil rights fully

restored following his misdemeanor domestic violence conviction.

        {¶ 20} Ewing, however, never lost any of his civil rights as a result of his

misdemeanor domestic violence conviction. See United States v. Chovan, 735 F.3d 1127,

1132 (9th Cir.2013) (appellant's misdemeanor domestic violence conviction "did not divest

him of civil rights because it did not divest him of the right to vote, the right to serve on a

jury, or the right to hold public office"). Judge Peeler admits this as part of his response

brief. "[T]he words 'civil rights restored' in [18 U.S.C.] 921(a)(33)(B)(ii) do not cover a person



5. We note that, even if Ewing had tried to have his conviction expunged, "a conviction for domestic violence
cannot be expunged as a matter of law when the offense is a felony or a first-degree misdemeanor." State v.
Clark, 1st Dist. Hamilton No. C-130672, 2014-Ohio-3612, ¶ 5.
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whose civil rights were never taken away." United States v. Bridges, 696 F.3d 474, 475

(6th Cir.2012), citing Logan v. United States, 552 U.S. 23, 37, 128 S. Ct. 475 (2007).

Therefore, because Ewing cannot satisfy any of the four mechanisms of relief from the

federal firearms disability imposed upon him under 18 U.S.C. 922(g)(9), Ewing is prohibited

by law, albeit federal law, from acquiring, having, or using firearms.

       {¶ 21} As noted above, an applicant in Ewing's position cannot be granted relief

under R.C. 2923.14 unless and until the applicant "is not otherwise prohibited by law from

acquiring, having, or using firearms." R.C. 2923.14(D)(3). Accordingly, because Ewing is

prohibited by law from acquiring, having or using firearms, Judge Peeler does not have the

judicial power under Ohio law, specifically R.C. 2923.14, to relieve Ewing of the federal

firearms disability imposed upon him under 18 U.S.C. 922(g)(9) as a result of his

misdemeanor domestic violence conviction.

       {¶ 22} In so holding, we note Ewing's argument claiming the General Assembly has

expressed its intent that R.C. 2923.14 should "extend to gun disabilities imposed under

federal law." To support this claim, Ewing refers this court to the uncodified language found

in 2011 H.B. No. 54, Section 3, which provides:

              It is the intent of the General Assembly in amending section
              2923.14 of the Revised Code to apply the amendments to that
              section retroactively to any restoration of rights granted
              previously to any applicant under section 2923.14 of the
              Revised Code or under any previous version of that section.
              The General Assembly is explicitly making this amendment to
              clarify that relief from a weapons disability granted under section
              2923.14 of the Revised Code restores a person's civil firearm
              rights to such an extent that the uniform federal ban on
              possessing any firearms at all, 18 U.S.C. 922(g)(1), does not
              apply to that person, in correlation with the U.S. Supreme
              Court's interpretation of 18 U.S.C. 921(a)(20) in Caron v. U.S.
              (1998), 524 U.S. 308.

       {¶ 23} However, by its terms, the uncodified language found in 2011 H.B. No. 54,

Section 3, refers only to a federal firearms disability imposed under 18 U.S.C. 922(g)(1).

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Unlike a federal firearms disability imposed under 18 U.S.C. 922(g)(9), a federal firearms

disability imposed under 18 U.S.C. 922(g)(1) makes it unlawful for any person who has

"been convicted in any court of, a crime punishable by imprisonment for a term exceeding

one year" to ship, transport, possess, or receive "any firearm or ammunition" in or affecting

commerce. Ewing's federal firearms disability was not imposed under 18 U.S.C. 922(g)(1).

Ewing's federal firearms disability was instead imposed under 18 U.S.C 922(g)(9).

Therefore, while the General Assembly may have expressed its intent that the procedures

outlined in R.C. 2923.14 should apply to a federal firearms disability imposed under 18

U.S.C. 922(g)(1), the same cannot be said as it relates to a disability imposed under 18

U.S.C. 922(g)(9).

                                         Conclusion

       {¶ 24} After considering the arguments advanced by both parties herein, Suwalski's

petition for a writ of prohibition is hereby granted as Judge Peeler does not have the judicial

power under Ohio law, specifically R.C. 2923.14, to relieve Ewing of the federal firearms

disability imposed upon him under 18 U.S.C. 922(g)(9).

       {¶ 25} Writ granted.


       HENDRICKSON, P.J., and M. POWELL, J., concur.




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