[Cite as State v. Haddox, 2016-Ohio-3368.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                       ERIE COUNTY


State of Ohio                                    Court of Appeals No. E-15-017

        Appellee                                 Trial Court No. 2011-CR-309

v.

Gregory R. Haddox                                DECISION AND JUDGMENT

        Appellant                                Decided: June 10, 2016

                                             *****

        Kevin J. Baxter, Erie County Prosecuting Attorney, Mary Ann
        Barylski, Chief Assistant Prosecuting Attorney, and Pamela A.
        Gross, Assistant Prosecuting Attorney, for appellee.

        Emil G. Gravelle III, for appellant.

                                             *****

        PIETRYKOWSKI, J.

        {¶ 1} Defendant-appellant, Gregory Haddox, appeals the January 8, 2015

judgment of the Erie County Court of Common Pleas which, following appellant’s

admission to a community control violation sentenced him to a total of 58 months of

imprisonment. For the reasons that follow we reverse, in part, and remand for

resentencing.
       {¶ 2} On September 9, 2011, a 23-count indictment was filed against appellant

charging him with the predicate offense of engaging in a pattern of corrupt activities.

Specifically, appellant was indicted on 15 counts of forgery, all either fourth or fifth-

degree felonies. Appellant was also indicted for grand theft, theft of elderly persons,

possession of criminal tools, theft, and passing bad checks. The charges stemmed from

appellant’s subcontractor relationship with Yoder’s Home Improvement. On multiple

occasions, from August 2010 through July 2011, appellant, in his salesperson role to

secure roofing jobs, forged checks from multiple roofing customers and took the funds

for his personal use. Appellant fraudulently signed the checks with his employer’s name,

endorsed them with rubber stamps he had made, and deposited them in his personal

account.

       {¶ 3} On May 18, 2012, appellant entered guilty pleas to a total of 11 counts.

Specifically, seven counts of forgery, one count of grand theft, one count of theft of

elderly persons (aggregated with four individuals), one count of possession of criminal

tools, and one count of theft. Appellant agreed to pay just over $100,000 in restitution

with the majority of the funds going to Yoder’s Home Improvement and small sums to

the Sandusky Register and Bennett Novelties.

       {¶ 4} The sentencing hearing was held on September 20, 2012, and appellant was

sentenced to five years of community control, was ordered to pay $102,285.35 in

restitution, was ordered to have no contact with the victims, and was ordered to pay the




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costs of the proceedings. Appellant was informed at the hearing that if he violated the

terms of his community control, a 58-month sentence would be imposed.

         {¶ 5} The October 1, 2012 sentencing judgment entry listed, by name, the 13

customers that appellant stole from including business owner, Mel Yoder. On

October 12, 2012, a nunc pro tunc judgment entry was entered to correct a typographical

error.

         {¶ 6} At a hearing held on January 23, 2015, appellant was found to have violated

his community control and it was terminated. The sentencing judgment entry,

journalized on January 28, 2015, ordered that appellant’s 11-month sentences for Counts

2, 6, 14, 19, 20, and 23, run concurrent and that his 17-month sentences for Counts 4, 8,

10, 12, and 17 run concurrent with each other. The court then ordered that the concurrent

sentences be served consecutive to each other for a total of 28 months. Finally, the court

ordered the 28-month sentence be served consecutively to the 30-month sentence in

Count 18 for 58 months of imprisonment. This appeal followed.

         {¶ 7} Appellant now sets forth six assignments of error for our review:

               1. The trial court committed plain error when it failed to aggregate

         offenses pursuant to R.C. 2913.61(C).

               2. The trial court committed plain error by failing to merge allied

         offenses of similar import pursuant to R.C. 2941.25.




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              3. The trial court erred when it failed to reduce Mr. Haddox’s

       penalties and punishments pursuant to changes made by the enactment of

       H.B. 86.

              4. The acts and omissions of trial counsel deprived appellant of his

       right to effective assistance of counsel in violation of his rights under the

       Fifth, Sixth, and Fourteenth Amendments to the United States Constitution

       and Article I, Section 10 and Section 16 of the Ohio Constitution.

              5. The trial court erred in sentencing Mr. Haddox to serve

       consecutive sentences in violation of R.C. 2929.14(C)(4).

              6. The trial court erred when it failed to provide Mr. Haddox with

       the proper notification pursuant to R.C. 2947.23(A).

       {¶ 8} In appellant’s first assignment of error, he contends that the court committed

plain error in failing to aggregate the grand theft and theft of elderly persons offenses and

all of the forgery offenses. We initially note that because appellant did not raise the

aggregate offense issue in the lower court, our review is limited to plain error. State v.

Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978); Crim.R. 52(B). To prevail under a plain

error analysis, an appellant bears the burden of demonstrating that the outcome of the

trial clearly would have been different but for the error. Id. at paragraph two of the

syllabus. Notice of plain error “is to be taken with the utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage of justice.” Id. at paragraph

three of the syllabus.




4.
     {¶ 9} R.C. 2913.61(C) provides, in relevant part:

            (1) When a series of offenses under section 2913.02 of the Revised

     Code, or a series of violations of, attempts to commit a violation of,

     conspiracies to violate, or complicity in violations of division (A)(1) of

     section 1716.14, section 2913.02, 2913.03, or 2913.04, division (B)(1) or

     (2) of section 2913.21, or section 2913.31 or 2913.43 of the Revised Code

     involving a victim who is an elderly person or disabled adult, is committed

     by the offender in the offender’s same employment, capacity, or

     relationship to another, all of those offenses shall be tried as a single

     offense. * * *. The value of the property or services involved in the series

     of offenses for the purpose of determining the value as required by division

     (A) of this section is the aggregate value of all property and services

     involved in all offenses in the series.

            (2) If an offender commits a series of offenses under section 2913.02

     of the Revised Code that involves a common course of conduct to defraud

     multiple victims, all of the offenses may be tried as a single offense. If an

     offender is being tried for the commission of a series of violations of,

     attempts to commit a violation of, conspiracies to violate, or complicity in

     violations of division (A)(1) of section 1716.14, section 2913.02, 2913.03,

     or 2913.04, division (B)(1) or (2) of section 2913.21, or section 2913.31 or

     2913.43 of the Revised Code, whether committed against one victim or




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      more than one victim, involving a victim who is an elderly person or

      disabled adult, pursuant to a scheme or course of conduct, all of those

      offenses may be tried as a single offense. * * *. If the offenses are tried as

      a single offense, the value of the property or services involved for the

      purpose of determining the value as required by division (A) of this section

      is the aggregate value of all property and services involved in all of the

      offenses in the course of conduct.

      {¶ 10} Appellant contends that under R.C. 2913.61(C)(1), the grand theft and theft

of an elderly person counts should have been aggregated into a single offense because

there was only one victim, Yoder’s Home Improvement. Based on this reasoning,

appellant further argues that all 15 forgery offenses, because they were committed in the

same employment, were required to be aggregated. Conversely, the state contends that

R.C. 2913.61(C)(2), rather than (C)(1) applies because there were multiple victims and,

thus, aggregation of the counts was permissive.

      {¶ 11} In support of his argument, appellant relies on a case where the defendant

defrauded a single individual, her grandfather, and the court determined that R.C.

2913.61(C)(1), requiring aggregation, applied. State v. Gibson, 2d Dist. Champaign No.

2013-CA-11, 2014-Ohio-136. Similarly, in State v. Preztak, 181 Ohio App.3d 106,

2009-Ohio-621, 907 N.E.2d 1254 (8th Dist.), the defendant, employed as a payroll

administrator, issued herself additional payroll checks. The court concluded that because

there was only one victim, the employer, the theft counts were required to be aggregated.




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Id. at ¶ 14-15. More aligned with the present facts, in State v. Crish, 3d Dist. Allen No.

1-08-13, 2008-Ohio-5196, the defendant, an agent for a title company, used customer

funds directed to go to mortgage payoffs for her personal use. The loss was borne by the

company. The court concluded that the theft offenses against “various investors” (as

described in the indictment) were committed against one victim and that the offenses

were required to be aggregated. Id. at ¶ 32.

       {¶ 12} Distinguishable from the above cases but related to the present facts, in

State v. Rodriguez, 8th Dist. Cuyahoga No. 89198, 2007-Ohio-6835, the defendant used a

forged social security card to obtain 17 motor vehicle titles. The court concluded that

each offense was committed when appellant made the application for a title. Id. at ¶ 25.

       {¶ 13} Looking at Crish and Rodriguez, we note that unlike Crish, appellant had

face-to-face dealings with Yoder customers, individually named in the indictment, who

appellant forged signatures on each of their personal checks. Further, appellant’s 2012

sentence specifically prohibited contact with each of the named individuals. Thus,

similar to Rodriquez, each act of theft was committed when appellant deceived the

individual customer, forged the check and deposited it into his account.

       {¶ 14} Accordingly, because we conclude that there were multiple victims,

aggregation of the offenses was not mandatory. Appellant’s first assignment of error is

not well-taken.

       {¶ 15} In appellant’s second assignment of error he argues that the trial court erred

by failing to merge allied offenses of similar import at sentencing. As with the aggregate




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offenses argument, appellant failed to raise the issue in the trial court. The failure to raise

the allied offenses issue waives all but plain error on appeal. State v. Rogers, 143 Ohio

St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 3.

       {¶ 16} The allied offense statute, R.C. 2941.25, provides:

              (A) Where the same conduct by defendant can be construed to

       constitute two or more allied offenses of similar import, the indictment or

       information may contain counts for all such offenses, but the defendant

       may be convicted of only one.

              (B) Where the defendant’s conduct constitutes two or more offenses

       of dissimilar import, or where his conduct results in two or more offenses

       of the same or similar kind committed separately or with a separate animus

       as to each, the indictment or information may contain counts for all such

       offenses, and the defendant may be convicted of all of them.

       {¶ 17} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, the

Supreme Court of Ohio clarified how courts are to determine whether offenses are allied.

The court noted that the allied-offenses analysis is dependent upon the facts of a case

because R.C. 2941.25 focuses on the defendant’s conduct. Id. at ¶ 26. However, conduct

is but one factor to consider when determining whether offenses are allied. Id. at ¶ 21.

The court stated:

              As a practical matter, when determining whether offenses are allied

       offenses of similar import within the meaning of R.C. 2941.25, courts must




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       ask three questions when defendant’s conduct supports multiple offenses:

       (1) Were the offenses dissimilar in import or significance? (2) Were they

       committed separately? and (3) Were they committed with separate animus

       or motivation? An affirmative answer to any of the above will permit

       separate convictions. The conduct, the animus, and the import must all be

       considered. Id. at ¶ 31.

       {¶ 18} The court further explained that offenses are of dissimilar import “if they

are not alike in their significance and their resulting harm.” Id. at ¶ 21. Thus, “two or

more offenses of dissimilar import exist within the meaning of R.C. 2941.25(B) when the

defendant’s conduct constitutes offenses involving separate victims or if the harm that

results from each offense is separate and identifiable.” Id. at ¶ 26. The evidence at trial

or during a plea or sentencing hearing will reveal whether the offenses have similar

import. Id.

       {¶ 19} Appellant argues that at sentencing, the forgery convictions should have

merged into the corresponding theft offenses. Appellant argues that the theft by

deception was committed by forging Mr. Yoder’s name on the checks to deposit them.

Thus, the offenses were committed by the same conduct for each check. Further, as in

appellant’s first assignment of error he contends that the victim, Yoder, was the same for

each check.

       {¶ 20} We first note that based upon our prior finding that there were multiple

victims, we reject appellant’s related arguments. As to the offenses of theft by deception




9.
and forgery, this court has observed that “a single course of conduct may entail multiple

criminal acts.” State v. Russell, 6th Dist. Lucas Nos. L-15-1002, L-15-1003, 2015-Ohio-

2802, ¶ 19, citing State v. Smith, 11th Dist. Geauga No. 2014-G-3185, 2014-Ohio-5076,

¶ 26.

        {¶ 21} Reviewing the present facts, we similarly find that the checks involved in

Counts 2, 4, 6, 8, 12, and 14 involved separate individuals, for separate amounts, on

separate days. Count 18, theft of elderly persons, is a distinct offense and appellant has

not demonstrated plain error in the court’s failure to merge the conviction.

        {¶ 22} Appellant further contends that the possession of criminal tools conviction

should merge with the theft convictions. Specifically, appellant contends that the rubber

stamps were used to facilitate the offenses and, thus, occurred together with the forgery

and theft offenses. Conversely, the state argues that the record alludes to multiple rubber

stamps and that some of them may not have been used to facilitate these specific charges.

        {¶ 23} Reviewing the record before us, we agree that there are references to

multiple stamps, with various names and banking institutions found in appellant’s

possession. Thus, we find that the trial court did not commit plain error in failing to find

that the criminal tools offense was an allied offense of similar import. Appellant’s

second assignment of error is not well-taken.

        {¶ 24} In his third assignment of error, appellant contends that the trial court erred

in failing to reduce his penalties and punishments for multiple fourth-degree felonies due

to the 2011 enactment of H.B. 86 which, inter alia, increased values for determining the




10.
level of theft offenses. Specifically, appellant contends that forgery Counts 4, 8, and 10,

which had loss values below $7,500, should be amended to fifth, rather than fourth-

degree felonies. Further, appellant argues that because Count 23, also a theft count,

failed to have any monetary amount listed, it should be designated as a first-degree

misdemeanor.

       {¶ 25} H.B. 86, effective September 30, 2011, reduced the classification of theft-

related felonies. Under the former version of the statute, a fourth-degree felony offense

occurred when the value of the loss was between $5,000 and $100,000. Under the

amended statute, the monetary range was raised to $7,500 to $150,000. The Supreme

Court of Ohio has held, and the state concedes, that because the effective date of the

statute was prior to appellant’s sentencing, he was entitled to a reduction in the offense

classification. See State v. Taylor, 138 Ohio St.3d 194, 2014-Ohio-460, 5 N.E.3d 612,

accord State v. Cornett, 6th Dist. Wood No. WD-13-024, 2014-Ohio-1988. Accordingly,

plain error occurred and appellant must be resentenced for his convictions under Counts

4, 8, and 10.

       {¶ 26} As to Count 23, we find that appellant was properly convicted of theft as

the corresponding charge of passing bad checks listed the monetary amount as $1,561.

Further at the plea hearing appellant was informed that the restitution amount to Bennett

Novelties was $1,561.




11.
       {¶ 27} Based on the forgoing, we find that appellant’s third assignment of error is

well-taken, in part, and that appellant be resentenced for his convictions under Counts 4,

8, and 10.

       {¶ 28} Appellant’s fourth assignment of error contends that he was deprived of his

constitutional right to effective trial counsel. To prevail on a claim of ineffective

assistance of counsel, a defendant must prove two elements: “First, the defendant must

show that counsel’s performance was deficient. This requires showing that counsel made

errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment. Second, the defendant must show that the deficient

performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984). Proof of prejudice requires a showing “that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694; State v. Bradley, 42 Ohio St.3d 136,

538 N.E.2d 373 (1989), paragraph three of the syllabus.

       {¶ 29} As it relates to convictions based upon guilty pleas, the prejudice element

generally requires a showing “that there is a reasonable probability that, but for counsel’s

errors * * * [the defendant] * * * would not have pleaded guilty and would have insisted

on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203

(1985); State v. Xie, 62 Ohio St.3d 521,524, 584 N.E.2d 715 (1992).

       {¶ 30} Reviewing our analyses of the preceding three assignments of error, we

cannot say that appellant’s counsel was ineffective by failing to raise various legal issues.




12.
First, we rejected both the aggregation and allied offense arguments. Next, regarding the

H.B. 86 issue, as the state notes the law was not settled until the Supreme Court of Ohio’s

decision in Taylor, 138 Ohio St.3d 194, 2014-Ohio-460, 5 N.E.3d 612 (resolving a

conflict between the Ninth and Fifth Appellate Districts). Finally, despite being indicted

on 23 felony counts, appellant’s counsel was able to secure a plea agreement and he was

initially sentenced to community control. Based on these facts, we find appellant’s fourth

assignment of error not well-taken.

       {¶ 31} In appellant’s fifth assignment of error he argues that the trial court erred in

sentencing him to consecutive sentences where he was not provided with the notification

required under R.C. 2929.14(C)(4). Specifically, appellant contends that the sentence is

contrary to law because the court at appellant’s initial 2012 sentencing stated that it

would impose consecutive sentences if appellant violated community control, but failed

to explain why a consecutive sentence would be imposed for a community control

violation. Conversely, the state asserts that the necessary findings were, in fact, made at

the January 23, 2015 sentencing hearing and further reflected in the January 28, 2015

judgment entry.

       {¶ 32} We review consecutive sentences under the standard of review set forth in

R.C. 2953.08. State v. Banks, 6th Dist. Lucas No L-13-1095, 2014-Ohio-1000, ¶ 10.

Under R.C. 2953.08(G)(2), we may increase, reduce, or modify a sentence, or vacate the

sentence and remand that matter to the sentencing court for resentencing, if we clearly

and convincingly find that either the record does not support the trial court’s findings




13.
under R.C. 2929.14(C)(4), or the sentence is otherwise contrary to law. This same

standard applies on review of the imposition of consecutive sentences following a

community control revocation hearing. State v. Steck, 6th Dist. Wood Nos. WD-13-017,

WD-13-018, 2014-Ohio-3623.

      {¶ 33} R.C. 2929.14(C)(4) provides:

             If multiple prison terms are imposed on an offender for convictions

      of multiple offenses, the court may require the offender to serve the prison

      terms consecutively if the court finds that the consecutive service is

      necessary to protect the public from future crime or to punish the offender

      and that consecutive sentences are not disproportionate to the seriousness of

      the offender’s conduct and to the danger the offender poses to the public,

      and if the court also finds any of the following:

             (a) The offender committed one or more of the multiple offenses

      while the offender was awaiting trial or sentencing, was under a sanction

      imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised

      Code, or was under post-release control for a prior offense.

             (b) At least two of the multiple offenses were committed as part of

      one or more courses of conduct, and the harm caused by two or more of the

      multiple offenses so committed was so great or unusual that no single

      prison term for any of the offenses committed as part of any of the courses

      of conduct adequately reflects the seriousness of the offender’s conduct.




14.
              (c) The offender’s history of criminal conduct demonstrates that

       consecutive sentences are necessary to protect the public from future crime

       by the offender.

       {¶ 34} In State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659,

syllabus, the Supreme Court of Ohio clarified the responsibilities of a trial court when

imposing consecutive sentences:

              In order to impose consecutive terms of imprisonment, a trial court

       is required to make the findings mandated by R.C. 2929.14(C)(4) at the

       sentencing hearing and incorporate its findings into its sentencing entry, but

       it has no obligation to state reasons to support its findings.

       {¶ 35} The court further explained:

              [A] word-for-word recitation of the language of the statute is not

       required, and as long as the reviewing court can discern that the trial court

       engaged in the correct analysis and can determine that the record contains

       evidence to support the findings, consecutive sentences should be upheld.

       Id. at ¶ 29.

       {¶ 36} At the January 23, 2015 sentencing hearing, a lengthy discussion was had

regarding appellant’s criminal activities which resulted in his community control

violation. The court then stated that it was terminating appellant’s community control

and imposing a 58-month prison sentence, a 28-month sentence consecutive to a 30-

month sentence and also consecutive to any prison terms appellant was currently serving.




15.
The court stated that “consecutive sentences are necessary because the sentence is

proportionate to the seriousness of the Defendant’s conduct, and the danger of future

crimes, and the danger the Defendant poses to the public, and his history of criminal

conduct.”

       {¶ 37} Appellant contends that the above recitation was insufficient because the

court had predetermined at appellant’s 2012 sentencing hearing that if appellant violated

community control he would receive a consecutive sentence. We disagree. As noted by

the state and conceded by appellant, the consecutive sentence was not imposed until

January 28, 2015. At the sentencing hearing, the trial court properly found that

consecutive sentences were warranted under R.C. 2929.14(C)(4)(c). Appellant’s fifth

assignment of error is not well-taken.

       {¶ 38} In appellant’s sixth and final assignment of error he argues that the court

erred when it failed to provide notice under R.C. 2947.23(A) that community service

could be imposed. The version of R.C. 2947.23(A) in effect when appellant was

sentenced to prison provides, in part:

              (A)(1)(a) In all criminal cases, including violations of ordinances,

       the judge or magistrate shall include in the sentence the costs of

       prosecution, including any costs under section 2947.231 of the Revised

       Code, and render a judgment against the defendant for such costs. If the

       judge or magistrate imposes a community control sanction or other




16.
       nonresidential sanction, the judge or magistrate, when imposing the

       sanction, shall notify the defendant of both of the following:

              (i) If the defendant fails to pay that judgment or fails to timely make

       payments towards that judgment under a payment schedule approved by the

       court, the court may order the defendant to perform community service

       until the judgment is paid or until the court is satisfied that the defendant is

       in compliance with the approved payment schedule.

              (ii) If the court orders the defendant to perform the community

       service, the defendant will receive credit upon the judgment at the specified

       hourly credit rate per hour of community service performed, and each hour

       of community service performed will reduce the judgment by that amount.

       (b) The failure of a judge or magistrate to notify the defendant pursuant to

       division (A)(1)(a) of this section does not negate or limit the authority of

       the court to order the defendant to perform community service if the

       defendant fails to pay the judgment described in that division or to timely

       make payments toward that judgment under an approved payment plan.

       {¶ 39} Former R.C. 2947.23(A)(1)(a) provided that the trial court must notify the

defendant when imposing its sentence that he may be subject to the community service

requirement. See R.C. 2947.23(A)(1)(a), effective September 28, 2012. That subsection

was revised effective March 22, 2013, as set forth above, to require that the court advise

the defendant of the community service notification only when it imposes either a




17.
community control sanction or other nonresidential sanction. State v. Lewis, 9th Dist.

Summit No. 27222, 2014-Ohio-4559, ¶ 28. That the court did so when it advised

appellant in the judgment entry that his failure to pay court costs could result in the

imposition of community service, does not amount to error. State v. Tunison, 6th Dist.

Wood No. WD-13-046, 2014-Ohio-2692, ¶ 9. Accordingly, we find that appellant’s sixth

assignment of error is not well-taken.

       {¶ 40} On consideration whereof, we find that appellant was prejudiced and

prevented from having a fair proceeding and the trial court’s January 28, 2015 judgment

is reversed and the matter is remanded for resentencing in accordance with this decision.

Pursuant to App.R. 24, appellee is ordered to pay the costs of this appeal.


                                                                         Judgment reversed.


       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.



Mark L. Pietrykowski, J.                        _______________________________
                                                            JUDGE
Stephen A. Yarbrough, J.
                                                _______________________________
James D. Jensen, P.J.                                       JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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