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          SUPREME COURT OF ALABAMA
                              SPECIAL TERM, 2014
                             ____________________

                                    1121121
                             ____________________

                 Ex parte Ronald Eugene Hollander, Jr.

                     PETITION FOR WRIT OF CERTIORARI
                    TO THE COURT OF CRIMINAL APPEALS

                  (In re: Ronald Eugene Hollander, Jr.

                                           v.

                               State of Alabama)

                  (Lauderdale Circuit Court, CC-12-350;
                 Court of Criminal Appeals, CR-12-0297)



PER CURIAM.

      WRIT QUASHED. NO OPINION.
1121121

     Stuart, Bolin, Parker, Murdock, Shaw, Main, and Wise,
JJ., concur.

    Moore, C.J., and Bryan, J., dissent.




                            2
1121121

MOORE, Chief Justice (dissenting).

    The Lauderdale Circuit Court denied the motion filed by

Ronald Eugene Hollander, Jr., to withdraw his guilty plea to

attempted first-degree assault. The Court of Criminal Appeals

affirmed     the    trial      court's      denial        by   an    unpublished

memorandum. Hollander v. State (No. CR-12-0297, May 24, 2013),

___ So. 3d ___ (Ala. Crim. App. 2013) (table). Because I

believe that Hollander has satisfied the legal standard for

the withdrawal of a guilty plea and that the result in this

case works an injustice, I dissent.

                   I. Facts and Procedural History

    The statement of facts attached to the criminal complaint

alleges that on January 7, 2012, Chris Weldon, a City of

Florence     police    officer,      received        information         that   an

individual    was     acting     suspiciously        in    a   parking    lot   in

Florence.1    Arriving      at    the       scene,    Weldon        observed    an

individual looking into the window of a vehicle. As Weldon


    1
     The complaint does not set forth the factual basis upon
which the allegations against Hollander are based. The
statement of facts attached to the complaint is unsigned and
unsworn, contrary to the requirements of § 15-7-2, Ala. Code
1975. Although the statement of facts does not indicate which
police officer witnessed the alleged crimes, the grand jury's
indictment identifies the officer as Chris Weldon.
                                        3
1121121

approached, the individual got into a different vehicle.

Weldon then spoke with the individual, who identified himself

as Ronald Hollander. The officer detected an odor of paint

coming from the vehicle and observed that Hollander had a can

of gold spray paint and a plastic bag. When Hollander started

his engine, Weldon told him to turn it off, but Hollander

instead drove away. Weldon pursued Hollander in his patrol

car.

       The statement of facts continues:

            "Hollander turned into the Med Plus parking
       lot[,] which dead ends. Hollander turned his vehicle
       around and accelerated towards Officer's vehicle[,]
       striking it in the front. Hollander then sideswiped
       the officer's vehicle[,] causing more damage to the
       officer's vehicle. Hollander then drove through
       Crocodile Ed's parking lot in a reckless manor
       [sic][,] which endangered patrons and property. He
       then ran two stop signs and exited the parking lot
       West bound [sic] on Mal[l] Road. While exiting the
       parking lot Hollander lost control[,] almost
       striking several vehicles at the intersection of
       Mall Rd. and Cloyd Blvd. He then accelerated to over
       65 MPH (twice the speed limit). Hollander then
       turned West bound [sic] on Florence Blvd. Other
       officers joined the pursuit at this time. Hollander
       made a right turn onto Arlington Blvd. He was
       blocked by several patrol officers and he stopped at
       Monticello Ave. and Arlington Blvd. He was taken
       into custody without further incident. The time
       f[r]ame is from 7:26 PM to 7:55 PM."




                                4
1121121

A Lauderdale County grand jury indicted Hollander for four

misdemeanors and for the felony of attempted assault in the

first   degree,   which   Hollander       allegedly    accomplished     by

"ramming" Weldon's patrol car with his vehicle, in violation

of §§ 13A-4-2 and 13A-6-20, Ala. Code 1975.

    Hollander's      trial    counsel     filed   a    motion     seeking

discovery of certain listed items, which the trial court

granted. On June 6, 2012, the State served on Hollander's

attorney    a   notice   of   discovery,     indicating    that    a   CD,

containing 30 pages of documents, and a DVD had been provided

to the defendant. In plea negotiations the State rejected

Hollander's request to attend a residential drug-treatment

program as an alternative to prison. Because Hollander had

three prior felonies, a conviction of attempted first-degree

assault, a Class C felony,2 would mandate a sentence under the

Habitual Felony Offender Act ("the HFOA"), § 13A-5-9, Ala.

Code 1975, of 15 years to 99 years or life imprisonment. The

State   offered   Hollander    a   plea    agreement    for   a   15-year

sentence.


    2
     Although first-degree assault is a Class B felony, § 13A-
6-20(b), the offense is reduced to a Class C felony when
charged as an attempt. § 13A-4-2(d)(3), Ala. Code 1975.
                                   5
1121121

     Hollander's         attorney,     seeking    to     avoid   the   severe

consequence of a fourth felony conviction for her client,

sought to convince the court to continue the case until

Hollander     finished     a    long-term   drug-treatment       program.   A

record of rehabilitation, she believed, could induce the State

to   recommend       a   plea   that   would     avoid    a   fourth   felony

conviction. Although Hollander's case was assigned to Judge

Michael Jones, a different judge, Judge Gilbert Self, whom

Hollander's counsel considered sympathetic to residential

drug-treatment programs, was assigned to conduct the pretrial

and settlement conferences.

     On August 9, 2012, during the pretrial conference before

Judge Self, Hollander's counsel argued the motion for in-

patient drug treatment.

          "Judge, Mr. Hollander is a notorious paint
     huffer. He has been huffing paint since, I think,
     thirteen years old.[3]

             "....

          "I've represented Mr. Hollander for years,
     Judge, on various matters. And as an officer of the
     court, I can represent to you that I've never seen
     Ronnie in this state of mind.

             "....

     3
         At the time of the hearing, Hollander was 30 years old.
                                       6
1121121


           "He has never come to me and said, 'Please get
      me into treatment. I want to be clean and sober.' He
      has done that now."

Counsel then explained her strategy:

           "He is charged with a very serious       offense, and
      it is an offense that probably really         doesn't need
      to be tried. We are asking the Court to       continue the
      trial and allow this defendant to go          to long-term
      in-patient drug treatment.

           "And frankly, Your Honor, I think if he does
      that and completes it and is successful at it, I
      think the State may be in a better position to
      negotiate a settlement in this case.

           "I am, I have never been optimistic about Ronnie
      Hollander being clean and sober until this day. And
      I am, and I would ask you under those facts and
      circumstances to continue his trial and allow him to
      go."

      The Lauderdale County District Attorney was unimpressed.

Noting previous unfruitful attempts to work with Hollander, he

was   "not   agreeable    to   him   avoiding    prison   by   going    to

treatment    now"   and    was   "opposed   to     him    avoiding     the

consequences for endangering the lives of law enforcement

while under the influence, by now, at this eleventh hour,

trying to go to treatment."




                                     7
1121121

    Noting that he had discussed the matter with Judge Jones,

Judge Self denied the motion to continue the case pending drug

treatment.

         "THE COURT: All right. I'm not going to continue
    it. This is based on my conversation with Judge
    Jones. This was Judge Jones's file before he left,
    that was, you know --

          "[Hollander's counsel]: I understand, Judge.

         "THE COURT: You know, so if you all want to
    discuss that with Judge Jones Tuesday, that is fine.
    Okay. But as far as I'm concerned, we'll leave it
    set for trial."

Judge Self reiterated: "So I'm going to deny the motion to

continue. It remains set for next week. And then let the chips

fall where they may. And you just need to take this up with

Judge Jones. It's Judge Jones's file."

    Thus, trial now loomed for Hollander before Judge Jones

early in the following week. Seeking to avoid trial and a

subsequent imposition of sentence by Judge Jones, counsel

advised   Hollander   to   reappear   before   Judge   Self   in   a

continuation of the pretrial conference to plead guilty and

seek a lenient sentence. Counsel calculated that the potential

detriment of pleading guilty would be more than offset by




                                8
1121121

having Judge Self, rather than Judge Jones, as the sentencing

judge.

    On Friday, August 10, Hollander reappeared before Judge

Self to plead guilty to attempted first-degree assault, a

Class C felony, under an "open plea." Although the minimum

punishment under the HFOA was 15 years, trial judges have the

option under the Split Sentence Act, § 15-18-8, Ala. Code

1975,    to   split   a   sentence   of   20   years   or   less   into   a

combination of time served in prison and on probation. The

prison portion of that sentence can be as little as three

years. § 15-18-8(a)(1), Ala. Code. 1975.4 Alternatively, the

trial judge may sentence the defendant to a rehabilitation

program of 90 to 180 days. Upon successful completion of the

program, the rest of the defendant's sentence may be suspended

and a period of probation ordered. § 15-18-8(a)(2), Ala. Code.

1975. Hollander thus entered an "open" plea in the hope that

Judge Self would agree to suspend or to split his sentence.5

    4
     The prison portion of a split sentence may itself be
suspended, and probation ordered. § 15-18-8(c), Ala. Code.
1975. See Ex parte McCormick, 932 So. 2d 124 (Ala. 2005).
    5
     Conviction of certain offenses disqualifies a defendant
from receiving a split sentence. However, the crime of
attempted assault to which Hollander pleaded guilty is not a
disqualifying offense.
                                     9
1121121

As his counsel stated: "[I]t's been explained to him over the

course of the last two days that he's pleading open, but the

minimum punishment is fifteen years, subject to suspension or

a split by this Court." The district attorney explained: "He

wants to appeal to the Court for something less than [15 years

in prison], that involves a drug treatment option. Hence, his

willingness to plead open."

    Because the State opposed any sentence of less than 15

years in prison, Judge Self decided "to defer adjudication of

guilt and acceptance of the plea until I've had an opportunity

to look at the [presentencing] report. And given the two

opposing views, I'm going to need that report." He rescheduled

Hollander's sentencing for September 26. Up to this point,

Hollander's strategy of avoiding a trial before Judge Jones

and positioning himself to be sentenced by Judge Self had

succeeded. However, for reasons not fully set forth in the

record, Hollander's sentencing was rescheduled for September

27 before Judge Jones. This development suddenly confronted

Hollander with the ominous flip side of the open plea -- that

Judge Jones might sentence him to more than 15 years. He




                              10
1121121

hastened to instruct his attorney to move to withdraw his

guilty plea.

    Hollander's counsel, arguing for the withdrawal of the

guilty plea, candidly explained to Judge Jones why "I advised

my client at the time he entered his plea to enter an open,

best interest, guilty plea[6] in front of Judge Self":

    "Your Honor, Judge Self took the plea and set this
    matter for sentencing. At that time we fully
    believed that Judge Self would hear this matter at
    sentencing. I don't think it's any secret that Judge
    Self typically views a request for drug treatment
    more favorably than this court does, and Mr.
    Hollander certainly needed to make a very strong
    argument on that point."

Counsel then explained how this strategy was potentially about

to boomerang:

    "Subsequent to the guilty plea this court changed
    the way the system was working and reassigned cases
    based on their original judge; that caused this
    defendant to be reassigned to this court unbeknownst
    to my client. That, in effect, de facto resulted in
    me giving my client poor legal advice to enter into
    an open plea."




    6
     A judge may order a split sentence if "satisfied that the
ends of justice and the best interests of the public as well
as the defendant will be served thereby." § 15-18-8(a), Ala.
Code 1975.
                             11
1121121

    As a further argument in support of withdrawing the

guilty    plea,   Hollander's   counsel   explained   that   she   had

recently become aware of a police video of Hollander's arrest:

    "[P]rior to the plea my client entered and
    subsequent to the plea my client asked me more than
    once if I had reviewed the video in this case. I
    instructed him I had no video and assumed there was
    no video because I did not have a video; however,
    subsequent to the plea my client instructed me to
    investigate and find why there was no video, that
    all police cars have dash cam videos and why didn't
    I have it. I did that, and yesterday I located two
    DVDs in the district attorney's file that I
    reviewed. With their permission I took those to my
    office. One of them did, in fact, contain a dash cam
    video that recorded the entire series of events as
    they unfolded. Your Honor, if that video was ever
    provided to me or my staff, either myself or my
    staff misplaced it or lost it. Therefore it was
    never provided. My client never had an opportunity
    to review the video and I stand here before you
    today stating that that video supports my client's
    version of events much more than the State's version
    of events. Therefore my client entered into a guilty
    plea without his lawyer having all the facts and
    without him having the opportunity to review all the
    evidence ...."

(Emphasis added.)

    Judge Jones denied Hollander's motion to withdraw his

guilty plea, adjudicated him guilty of attempted assault,

dismissed the remaining misdemeanor charges, and sentenced

Hollander as a habitual felony offender to 20 years in prison.




                                 12
1121121

    On October 24, 2012, Hollander filed a postjudgment

motion to set aside his guilty plea. Forgoing argument about

the misadventure of the unexpected change of sentencing judge,

the motion relied completely on the belated discovery of the

police-chase video. Prior to entering a guilty plea, the

motion    stated,     Hollander   had   inquired   of   his   attorney

"numerous times" as to why no "dash-cam" video was provided in

discovery. Counsel had told him that a video had not been

produced and therefore must not exist. Because of Hollander's

repeated requests about the video both before and after the

guilty    plea,     counsel   finally   inquired   of   the   district

attorney's office and obtained a copy, which Hollander had yet

to view. The video, stated the motion, "painted a different

light on the facts of the case."

    Counsel explained in the motion how not having the video

had skewed her advice to Hollander's disadvantage.

         "Had the undersigned had the opportunity to
    review the video tape prior to the plea, the legal
    advice given to the defendant would have been far
    different from the legal advice that the defendant
    received. It was on the undersigned's advice that
    the defendant pled guilty to the crime for which he
    is charged."




                                   13
1121121

On November 2, 2012, the circuit court denied Hollander's

motion to withdraw his guilty plea. The Court of Criminal

Appeals affirmed Hollander's conviction for attempted first-

degree assault and his sentence as a habitual felony offender.

Hollander then petitioned this Court for a writ of certiorari,

which we granted and which this Court today quashes.

                         II. Standard of Review

       "[W]hether a defendant should be allowed to withdraw a

plea of guilty is a matter solely within the discretion of the

trial court, whose decision will not be disturbed on appeal

absent a showing of abuse of discretion." Ex parte Heaton, 542

So. 2d 931, 933 (Ala. 1989).

                             III. Analysis

       Before the Court of Criminal Appeals, Hollander argued

that his constitutional right to effective assistance of

counsel had been violated in two respects. First, trial

counsel advised Hollander to plead guilty in the expectation

that he would be sentenced by Judge Self. However, this

strategy failed, exposing Hollander to the hazard of an open

plea    before   Judge    Jones.   Second,   trial   counsel,   despite

multiple requests by Hollander, failed to obtain and to review


                                    14
1121121

the dashboard-camera video that recorded the events leading to

his arrest.

    "In order to prevail on a claim of ineffective assistance

of counsel, a defendant must show (1) that his counsel's

performance was deficient, and (2) that he was prejudiced by

the deficient performance." Burtram v. State, 733 So. 2d 921,

922 (Ala. Crim. App. 1998) (citing              Strickland v. Washington,

466 U.S. 668, 687 (1984)). "In the context of guilty plea

proceedings,     a     petitioner     must      show    that,      but   for    his

counsel's errors, he would not have pleaded guilty but would

have insisted on proceeding to trial." Burtram, 733 So. 2d at

922 (citing Hill v. Lockhart, 474 U.S. 52, 58-59 (1985)). "The

court   shall   allow     withdrawal       of    a     plea   of   guilty      when

necessary to correct a manifest injustice." Rule 14.4(e), Ala.

R. Crim. P.

A. The Strategy of Seeking Sentencing Before Judge Self

    Simply because counsel's strategy to present Hollander

for sentencing before Judge Self did not succeed does not mean

counsel was ineffective. Otherwise, every convicted defendant

would have a viable ineffective-assistance claim. Instead, the

"petitioner     must    show   that    counsel's        performance       was    so


                                      15
1121121

deficient   as   to   fall    below   an   objective    standard   of

reasonableness." Ex parte Baldwin, 456 So. 2d 129, 134 (Ala.

1984). Counsel's strategy, with which Hollander agreed, to

seek sentencing before Judge Self rather than a trial before

Judge Jones may have failed because of circumstances beyond

counsel's   control,    but     it    certainly   was    objectively

reasonable. As the Court of Criminal Appeals stated:

    "Because counsel was familiar with Hollander's long-
    standing struggles with substance abuse, it was not
    unsound trial strategy for counsel to suggest a plea
    agreement in front of a judge normally sympathetic
    to requests for drug treatment. That trial counsel
    did not predict the case would be transferred to
    another judge cannot be considered deficient
    performance ...."

    Because Hollander has not met his burden of showing that

counsel's tactical decision to seek sentencing before Judge

Self was objectively unreasonable, we need not ask whether

that decision caused him prejudice. "[T]here is no reason for

a court deciding an ineffective assistance claim ... to

address both components of the inquiry if the defendant makes

an insufficient showing on one." Strickland, 466 U.S. at 697.

B. Counsel's Failure to Locate the Police Dashboard-Camera
Video




                                 16
1121121

    The Court of Criminal Appeals, conceding that counsel's

failure to discover the dashboard-camera video in a timely

manner satisfied the first Strickland prong of deficient

performance,   nonetheless      held   that    the   failure   did   not

prejudice Hollander's decision to plead guilty.

         "Hollander's argument that his trial counsel's
    assistance was deficient based on trial counsel's
    failure to investigate whether there was an
    exculpatory dashboard video satisfies the first
    Strickland prong. Counsel admitted to either
    misplacing the video if it had been sent, or failing
    to look in the district attorney's file for the
    video even after repeated requests by Hollander to
    investigate the existence of the video. Because it
    was unreasonable not to determine whether there was
    a dashboard-camera video that contained potentially
    exculpatory evidence, Hollander's trial counsel's
    performance was arguably deficient under the first
    Strickland prong. ...

         "Although counsel's performance was arguably
    deficient, Hollander has not demonstrated the
    prejudice necessary to satisfy the second Strickland
    prong."

    The Court of Criminal Appeals stressed that, despite

counsel's   statements   that    the   video    favored   Hollander's

version of the events, its absence from the record means that

"there is nothing to indicate that the video would exonerate

Hollander." However, Hollander did not need to show that the

missing video would exonerate him, only "that there is a


                                  17
1121121

reasonable probability that, but for counsel's unprofessional

errors,   the       result   of   the        proceeding        would    have   been

different.      A    reasonable    probability            is     a     probability

sufficient      to     undermine    confidence            in     the     outcome."

Strickland, 466 U.S. at 694 (emphasis added). See Hill v.

Lockhart, 474 U.S. 52, 59 (1985) (stating that "whether the

error 'prejudiced' the defendant by causing him to plead

guilty rather than go to trial will depend on the likelihood

that discovery of the evidence would have led counsel to

change his recommendation as to the plea" (emphasis added));

Waters v. State, 963 So. 2d 693, 696 (Ala. Crim. App. 2006)

(holding that because the defendant "did not have complete

information upon which to base his decision" the trial court

should have afforded him the opportunity to withdraw his

guilty plea).

    In this case we need not estimate the "likelihood" that

counsel would have changed her recommendation, because the

record indicates that she did and that she so informed the

trial court at the sentencing hearing. Further, when decisive

evidence, which the defendant sought diligently to discover,

but counsel negligently failed to acquire, suddenly surfaces


                                        18
1121121

after the entry of a guilty plea, counsel's failure to offer

that evidence into the record when moving for withdrawal of

the   plea   at    the    sentencing    hearing     further   undermines

confidence in the outcome.

      The Court of Criminal Appeals additionally reasoned that

the evidence against Hollander was so strong that even the

availability of the video would not have changed his decision

to plead guilty.

      "The record indicates that Hollander was observed by
      police officers huffing paint in the driver's seat
      of an automobile. Hollander refused to turn off his
      car when police ordered him to do so, and then led
      police on a high-speed chase once officers tried to
      apprehend   him.  During   that   high-speed   chase
      Hollander ended up in a dead-end alley, and in his
      attempt to reverse course and escape, he rammed into
      a police car. Hollander was charged with five
      separate crimes for his actions, and the State had
      numerous police witnesses that would testify to
      Hollander's guilt for each of those crimes.
      Considering the State's evidence, it is unlikely
      that Hollander would not have agreed to plead guilty
      given the evidence against him and the number of
      crimes for which he was charged."

These assertions do not conform with the facts alleged in the

indictment   and    the    criminal    complaint.    According   to   the

indictment, only Officer Chris Weldon witnessed Hollander

huffing paint, driving off, eluding Weldon, striking Weldon's

patrol car with his vehicle, recklessly driving through the

                                   19
1121121

parking lot of a mall, and leading Weldon in a police pursuit

that created a substantial risk of serious physical injury to

Weldon. According to the statement of facts attached to the

complaint, the other officers joined the pursuit only after

Hollander committed the alleged crimes. Considering that the

State's evidence of attempted first-degree assault hinges on

the    testimony    of   only   one     witness,   it   is   unlikely    that

Hollander     pleaded    guilty    on    account   of   "numerous     police

witnesses."

       Likewise, the number of crimes charged is not conclusive

of Hollander's decision to plead guilty. Each of the four

misdemeanors carried a maximum sentence of 12 months. They

pale    in   comparison,    even      collectively,     to   the   potential

sentence of 15 years to life for the attempted-assault charge

as magnified by the habitual-felony-offender enhancement.

Knowing that evidence was available that could conclusively

exonerate     him   from    the       attempted-assault      charge     would

certainly have altered Hollander's decision to plead guilty.

       Deficient performance, but not prejudice, may be found,

for instance, when a purported error of counsel is harmless.

For example, trial counsel may fail to object to hearsay


                                       20
1121121

testimony, but other properly admitted evidence may be so

probative of the defendant's guilt as to render the improper

evidence duplicative and thus nonprejudicial. In this case,

however, the dashboard-camera video is unique and likely

conclusive, in that it portrays the actual events underlying

the guilty plea. In the absence of the video, the jury would

have to weigh Hollander's credibility against that of the

police officer. With the video, Hollander has the assistance

of incontrovertible evidence that could conclusively exonerate

him.    Counsel's   statements    indicate      that,     in   her    view,

Hollander would not have pleaded guilty had he been able to

view that evidence on a timely basis. She freely confessed

that her error in this regard induced Hollander to plead

guilty. Hollander's insistence that the video was essential to

his defense indicates that he understood that it would benefit

him. Repeatedly asking counsel to inquire about the existence

of the video would have been irrational if Hollander knew that

he had indeed directly rammed the police vehicle in full view

of the dashboard-camera recording device.

       "An   ineffectiveness    claim    ...   is    an   attack     on   the

fundamental     fairness   of   the     proceeding    whose    result      is


                                  21
1121121

challenged." Strickland, 466 U.S. at 697. When deficient

performance of counsel causes unique dispositive evidence to

be unavailable on a timely basis for consideration in making

the decision whether to plead guilty or go to trial, the

unfairness    to    the    defendant      who   pleads   guilty   without

knowledge of the existence of this evidence is palpable. The

failure of trial counsel to offer the video into evidence, and

thus its absence from the record on appeal, prohibits us from

determining the precise degree of prejudice Hollander suffered

from its absence.7 Nonetheless, to require Hollander to suffer

the effects of a guilty plea he would not otherwise have

entered    into    but    for   counsel's   deficient    performance   is

fundamentally unfair. See Ex parte Thomas, 616 So. 2d 352

(Ala. 1992) (holding that a refusal to permit the withdrawal

of a guilty plea in light of misrepresentations about lost

evidence     "constituted       a   manifest    injustice"    justifying

withdrawal of the plea).



    7
     Indeed, counsel's failure to offer the video into
evidence at the hearing on Hollander's motion to withdraw his
guilty plea is further evidence of deficient performance and
resulting prejudice to Hollander. If the video were in the
record, this Court would have had a firmer basis on which to
evaluate Hollander's petition.
                                     22
1121121

       Allowing Hollander to withdraw his guilty plea does not

mean he will go free. "Upon withdrawal of a guilty plea, the

charges against the defendant as they existed before any

amendment, reduction, or dismissal made as part of a plea

agreement shall be reinstated automatically." Rule 14.4(e),

Ala. R. Crim. P. Unless he repleaded, Hollander would still

face    trial   for   attempted   first-degree   assault   and   four

misdemeanors. But at his side he would have not only counsel,

but also the perfect witness: a video of the events giving

rise to his indictment.

                           IV. Conclusion

       Because under governing law Hollander is entitled to

withdraw his guilty plea, I dissent from quashing the writ of

certiorari.




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