#27304-a-DG

2016 S.D. 2

                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA

                                    ****
STATE OF SOUTH DAKOTA,                       Plaintiff and Appellee,

      v.

TAMMY JEAN KVASNICKA,                        Defendant and Appellant.


                                    ****

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE SECOND JUDICIAL CIRCUIT
                  MINNEHAHA COUNTY, SOUTH DAKOTA

                                    ****

                   THE HONORABLE ROBIN J. HOUWMAN
                               Judge

                                    ****
MARTY J. JACKLEY
Attorney General

ANN C. MEYER
Assistant Attorney General
Pierre, South Dakota                         Attorneys for plaintiff
                                             and appellee.

MICHELLE THOMAS of
Minnehaha County Public
 Defender’s Office
Sioux Falls, South Dakota                    Attorneys for defendant and
                                             appellant.

                                    ****



                                             CONSIDERED ON BRIEFS ON
                                             NOVEMBER 30, 2015
                                             OPINION FILED 01/06/16
#27304

GILBERTSON, Chief Justice

[¶1.]         In her second appeal to this Court, 1 Tammy Jean Kvasnicka appeals

the circuit court’s denial of her motion to withdraw her plea of guilty to first-degree

manslaughter and vehicular battery. According to Kvasnicka, she is unable to

recall committing the crimes alleged and pleaded guilty out of fear. We affirm.

                           Facts and Procedural History

[¶2.]         At approximately 2:00 a.m. on July 10, 2010, after an evening of

consuming alcohol, Kvasnicka caused a fatal automobile accident by driving her

vehicle southbound in the northbound lane of Interstate 229 near Sioux Falls.

Although Kvasnicka was not seriously injured, one passenger in the car she struck

died at the scene and another passenger suffered a serious injury to his arm. The

alcohol content in Kvasnicka’s blood was as high as 0.225 at 3:44 a.m. and still at

least 0.200 at 4:47 a.m.

[¶3.]         A jury convicted Kvasnicka of first-degree manslaughter by means of a

dangerous weapon, vehicular homicide, vehicular battery, and driving under the

influence. Kvasnicka admitted to two habitual-offender informations alleging that

she had been previously convicted twice for driving under the influence and once for

second-degree burglary. The circuit court sentenced Kvasnicka to 70 years in prison

with 18 years suspended. Among other things, Kvasnicka appealed the circuit

court’s admission of expert testimony regarding the kinetic energy of Kvasnicka’s




1.      See State v. Kvasnicka, 2013 S.D. 25, 829 N.W.2d 123, for additional details
        of Kvasnicka’s first appeal.

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vehicle. After determining the challenged testimony was prejudicial and not

relevant, this Court reversed and remanded for a new trial.

[¶4.]        A second trial was scheduled for August 20, 2013. However, the State

and Kvasnicka entered into a plea agreement. Under the agreement, Kvasnicka

pleaded guilty to one count of first-degree manslaughter and one count of vehicular

battery. In exchange for her plea, the State agreed to seek a sentence of 37.5 years

and restitution in the amount of $199,111. The circuit court held a plea hearing on

August 15, 2013. At the hearing, the circuit court explained Kvasnicka’s

constitutional rights, the charges against her, and the terms of the plea agreement.

The court then had the following discussion with Kvasnicka:

             [Court]: Do you understand these rights?
             [Kvasnicka]: Yes, Your Honor.
             [Court]: Do you understand that by entering a guilty plea today,
             you give up all of these rights?
             [Kvasnicka]: Yes, I do.
             [Court]: Is your decision to plead guilty voluntary?
             [Kvasnicka]: Yes, it is, Your Honor.
             [Court]: Is it your decision and yours alone?
             [Kvasnicka]: Yes.
             ....
             [Court]: Ms. Kvasnicka, do you have any questions about either
             of the charges that you would plead guilty to?
             [Kvasnicka]: I don’t, no.
             [Court]: Do you have any questions at all about your rights?
             [Kvasnicka]: No, Your Honor.

Following this discussion, the court had the State recite the factual basis for the

guilty plea, and Kvasnicka agreed with the State’s rendition of the facts.



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[¶5.]        On February 26, 2014—the day before the scheduled sentencing—

defense counsel informed the State that Kvasnicka might want to withdraw her

plea. Kvasnicka did not file a motion to withdraw her plea until June 12, 2014.

The court held a hearing on the motion on August 13, 2014. At the hearing, the

State indicated it was unable to locate a witness, Christopher Jones, whom the

State expected to testify that Kvasnicka used her automobile as a dangerous

weapon on July 10, 2010, by driving the wrong way on the interstate at 80 miles per

hour and that she did not attempt to avoid colliding with the other vehicle. Jones

did not testify during the first trial because the State had lost contact with him

prior to trial. However, subsequent to our decision in Kvasnicka’s first appeal, the

State located and subpoenaed Jones in order to secure his testimony during the

anticipated second trial. After Kvasnicka pleaded guilty, the State informed Jones

that his testimony was no longer needed. By the time Kvasnicka sought to

withdraw her plea, Jones had changed addresses and phone numbers, and the State

was once again unable to locate him.

[¶6.]        Kvasnicka appeals, raising one issue: Whether the circuit court abused

its discretion by denying her motion to withdraw her guilty plea.

                                Standard of Review

[¶7.]        “The decision to allow a defendant to withdraw a guilty plea is a

matter solely within the discretion of the trial court and is reviewed under an abuse

of discretion standard.” State v. Pentecost, 2015 S.D. 71, ¶ 9, 868 N.W.2d 590, 593

(quoting State v. Goodwin, 2004 S.D. 75, ¶ 4, 681 N.W.2d 847, 849). “An abuse of

discretion ‘is a fundamental error of judgment, a choice outside the range of


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permissible choices, a decision, which, on full consideration, is arbitrary or

unreasonable.’” Gartner v. Temple, 2014 S.D. 74, ¶ 7, 855 N.W.2d 846, 850 (quoting

Arneson v. Arneson, 2003 S.D. 125, ¶ 14, 670 N.W.2d 904, 910).

                               Analysis and Decision

[¶8.]         SDCL 23A-27-11 permits a defendant who has pleaded guilty to make

a “motion to withdraw a plea of guilty . . . before sentence is imposed or imposition

of sentence is suspended[.]” The grant or denial of a motion to withdraw a guilty

plea is within the discretion of the circuit court. State v. Schmidt, 2012 S.D. 77,

¶ 15, 825 N.W.2d 889, 894. Although “a court should exercise its discretion liberally

in favor of withdrawal[,]” State v. Olson, 2012 S.D. 55, ¶ 18, 816 N.W.2d 830, 836, a

defendant does not have “an automatic right to withdraw a guilty plea[,]” id.

(quoting State v. Thielsen, 2004 S.D. 17, ¶ 15, 675 N.W.2d 429, 433); United States

v. Heid, 651 F.3d 850, 853 (8th Cir. 2011). After a defendant pleads guilty pursuant

to a plea agreement, she “may not withdraw [her] plea unless [she] shows a ‘fair and

just reason’” for doing so. United States v. Hyde, 520 U.S. 670, 671, 117 S. Ct. 1630,

1631, 137 L. Ed. 2d 935 (1997); Schmidt, 2012 S.D. 77, ¶ 16, 825 N.W.2d at 894. 2



2.      In addition to the phrase fair and just reason, we have previously used the
        phrase tenable reason in reference to a defendant’s burden in a request to
        withdraw a guilty plea. See State v. Engelmann, 541 N.W.2d 96, 100 (S.D.
        1995) (“[The defendant] need only state a tenable reason why withdrawal
        should be permitted, a reason based on more than a mere wish to have a
        trial.”). As used in our prior cases, there is no material distinction between
        these phrases. Engelmann cited State v. Grosh, 387 N.W.2d 503, 506 (S.D.
        1986), as authority. In Grosh, we said that “the defendant must state a
        persuasive reason why withdrawal should be permitted[.]” 387 N.W.2d at
        506 (emphasis added). We also cited a portion of United States v. Barker, 514
        F.2d 208 (D.C. Cir. 1975), directly discussing the fair-and-just-reason
        standard. Grosh, 387 N.W.2d at 506 (citing Barker, 514 F.2d at 220). More
                                                                     (continued . . .)
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[¶9.]        In determining whether a defendant has stated a fair and just reason

for withdrawing a guilty plea, this Court and other jurisdictions have considered a

number of factors including: whether the defendant knowingly and voluntarily

pleaded guilty; United States v. Bowman, 348 F.3d 408, 414 (4th Cir. 2003); State v.

Grosh, 387 N.W.2d 503, 506 (S.D. 1986); whether the defendant asserts she is

innocent; Heid, 651 F.3d at 853-54; Grosh, 387 N.W.2d at 506; delay between the

defendant’s plea and request for withdrawal of the plea; Heid, 651 F.3d at 854;

whether the defendant received competent assistance of counsel in making the

decision to plead guilty; Bowman, 348 F.3d at 414; whether withdrawing the plea

will prejudice the prosecution of the defendant; Heid, 651 F.3d at 854; Schmidt,

2012 S.D. 77, ¶ 23, 825 N.W.2d at 896; and whether withdrawing the plea will

waste judicial resources; Bowman, 348 F.3d at 414. However, this is hardly a

checklist. The ultimate determination of whether a defendant has presented a fair

and just reason to withdraw a guilty plea is left to the sound discretion of the trial




____________________
(. . . continued)
         recently, in Schmidt, we equated these phrases. 2012 S.D. 77, ¶ 16, 825
         N.W.2d at 894 (“A request to withdraw a guilty plea is frivolous if a
         defendant fails to provide ‘a tenable reason why withdrawal should be
         permitted, a reason’ the court deems fair and just.” (quoting Thielsen, 2004
         S.D. 17, ¶ 15, 675 N.W.2d at 433) (citing Everett v. United States, 336 F.2d
         979, 982 (D.C. Cir. 1964))). We also directly quoted Everett: “A defendant
         who stands before a court freely admitting his crime does not remotely meet
         the standard of offering a ‘fair and just reason’ for withdrawing his plea of
         guilty prior to sentence.” Id. (quoting Everett, 336 F.2d at 984). More
         importantly, as detailed in the remainder of this paragraph, the factors we
         typically consider in reviewing a withdrawal-of-guilty-plea case parallel those
         considered by federal courts. Therefore, in our cases, the phrase tenable
         reason refers to the federal, fair-and-just-reason standard.

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court; we will set aside such a determination only when it constitutes an abuse of

discretion. Pentecost, 2015 S.D. 71, ¶ 9, 868 N.W.2d at 593.

[¶10.]       Kvasnicka does not dispute that her plea was voluntary or that she

understood her constitutional rights at the time she pleaded guilty. Instead, she

asserts the circuit court abused its discretion by denying her motion to withdraw

her guilty plea because her “decision to plead guilty stemmed from her own fear of

going forward to a jury trial” and because “she had no recollection as to how she was

handling the vehicle she was driving on the night of July 10, 2010.” Under the

circumstances of this case, Kvasnicka has not presented a fair and just reason for

withdrawing her plea.

[¶11.]       Kvasnicka’s assertion that she should have been allowed to withdraw

her guilty plea because she was unable to recall the events of July 10, 2010, is

meritless. At the August 15, 2013 plea hearing, the court asked the State to recite

the factual basis for Kvasnicka’s plea. Among other things, the State said:

             Your Honor, on July 10, 2010, shortly before 2 o’clock in the
             morning, the defendant Tammy Kvasnicka was operating a 2001
             Dodge Intrepid automobile. She had entered Interstate 229
             through the Minnesota Avenue exit ramp and travelled
             southbound on a northbound lane of Interstate 229. Shortly
             after Minnesota Avenue and before Western Avenue, she struck
             a vehicle being driven by Corbin Burwell causing a nearly head-
             on collision. That collision caused the vehicle driven by Mr.
             Burwell to go into the median of Interstate 229. . . .

             Trooper Robert Meyer was the first one on scene of the
             defendant’s vehicle where he observed her climbing out of the
             passenger-side window of that vehicle and noticed her to be
             under the influence of an alcoholic beverage. She was
             subsequently arrested for the charges and a blood sample was
             taken an hour and some minutes after the crash returned a .219
             and a second blood sample taken roughly one hour later
             returned a .200.

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After the State concluded its recitation of the facts, the court had the following

discussion with Kvasnicka:

             [Court]: Ms. Kvasnicka, do you generally agree with what [the
             State] said occurred in the early morning hours of July 10th of
             2010?
             [Kvasnicka]: Yes, Your Honor, I do.
             [Court]: Is there anything that [the State has] said happened
             those early morning hours that you do not agree with?
             [Kvasnicka]: No.
             [Court]: . . . Do you admit that on July 10, 2010, you were
             driving a vehicle here in Minnehaha County?
             [Kvasnicka]: Yes, I do.
             [Court]: And do you admit that at the time you were driving
             that vehicle, without design or an intention to effect the death
             of, but through use of a dangerous weapon, that you killed a
             human being namely Michael Xayavong?
             [Kvasnicka]: Yes, I do.
             [Court]: Do you also admit that at the time that incident
             occurred, that you were under the influence of an alcoholic
             beverage?
             [Kvasnicka]: Yes, I was.
             [Court]: And do you also admit that at the time you were
             driving your vehicle in a negligent manner and caused serious
             bodily injury to Tony Chounramany?
             [Kvasnicka]: Yes, I did.

Despite the foregoing, Kvasnicka now claims that she could not remember the

details of July 10, 2010, even while she was representing to the court that she did

remember the same. In essence, then, Kvasnicka asserts that lying to a court

constitutes a fair and just reason for later withdrawing a guilty plea.

[¶12.]       The United States Court of Appeals for the District of Columbia

Circuit decided a similar case in United States v. Shah, 453 F.3d 520 (D.C. Cir.

2006). Shah pleaded guilty to charges of importing heroin, conspiring to possess


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heroin with the intent to distribute, and conspiring to distribute heroin. Id. at 521.

Before sentencing, Shah sought to withdraw his plea, but the district court denied

the motion. Id. On appeal, Shah did not dispute that the plea proceedings fully

complied with required procedures. Id. at 522. Instead, Shah “asserted that the

plea agreement ‘improperly inflated and enhanced [his] role’ in the conspiracy and

that ‘there was little or no factual basis in the government’s proffer.’” Id. The court

of appeals concluded that “Shah’s argument . . . amounts to a claim that the defect

in the taking of his plea consisted of his committing perjury when, under oath, he

acknowledged the truth of the factual recitals in the plea agreement and in the

government’s proffer.” Id. at 523. Thus, when faced with the same argument that

Kvasnicka now offers to this Court, the court of appeals held, “Lying to a court is

not a ‘fair and just reason’ for allowing a plea to be withdrawn.” Id. (citation

omitted); see also United States v. Vargas–Gutierrez, 464 F. App’x 492, 496 (6th Cir.

2012); United States v. Peterson, 414 F.3d 825, 827 (7th Cir. 2005).

[¶13.]         We agree with Shah. “[A] motion that can succeed only if the

defendant committed perjury at the plea proceedings may be rejected out of hand

unless the defendant has a compelling explanation for the contradiction.” Peterson,

414 F.3d at 827. Here, Kvasnicka has offered no such explanation. 3 Although

Kvasnicka claims her decision to plead guilty was motivated by fear, she does not

clearly express what she was afraid of. When asked during the August 13, 2014


3.       It is unclear whether Kvasnicka was under oath at the August 15, 2013
         hearing when she pleaded guilty. Even if not technically perjury, however,
         lying to a court is lying to a court. Speaking falsely while not under oath does
         not make that falsehood any more fair and just than a falsehood uttered
         under oath.

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hearing to explain her decision to plead guilty, the following conversation occurred

between Kvasnicka and her attorney:

             [Defense Counsel]: . . . [W]hat thought had you given [the plea
             agreement] in those several days leading up to the guilty plea?
             [Kvasnicka]: Fear. There was really no thought.
             [Defense Counsel]: When you say fear, can you—
             [Kvasnicka]: I based it out of my own fear versus the facts. I
             went and looked back at the trial, the first trial with the
             Supreme Court when we won the appeal and I almost wondered
             what was the point of all of that if I was going to go in and plead
             guilty to something that I have no recollection of, but based out
             of everything that was said, well, I guess you pretty much have
             to go through with it, and so fear overrode facts pretty much
             with me.
             ....
             . . . I heavily did not take anything into consideration except for
             just not wanting to drag everyone through trial again, but why
             didn’t I take that opportunity if the Supreme Court gave it to
             me.

Kvasnicka’s brief to this Court similarly states: “Having previously sat through a

jury trial on the same case, [her] biggest concern was avoiding having to drag

everyone through a trial once again, not whether or not she was actually guilty of

Manslaughter in the 1st Degree.” Therefore, we are left to conclude that the fear to

which Kvasnicka refers is simply the fear of going to trial a second time.

[¶14.]       There are several problems with Kvasnicka’s argument. First,

Kvasnicka already appealed the outcome of her first trial. Among other things, she

sought reversal because of the admission of expert testimony that she alleged was

inadmissible. Kvasnicka succeeded in convincing this Court that a new trial was

necessary, and she can hardly now claim to be afraid of the result of that success—a

new trial. Second, Kvasnicka does not dispute that her plea was voluntary in the


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constitutional sense; therefore, the degree of fear under consideration here

necessarily was not so great as to deprive Kvasnicka of a meaningful decision. 4

Consequently, her argument must be taken to mean that even if a defendant

voluntarily and knowingly pleads guilty, that decision nevertheless provides a fair

and just reason for withdrawal of the plea when the defendant considers her own

fear of proceeding to trial in determining whether to plead guilty. Kvasnicka offers

no authority to support this notion. There is little doubt that the average criminal

defendant views the prospect of trial and its attendant risk of conviction with some

degree of trepidation. To hold that any such defendant who pleads guilty in part to

avoid the trial process and to secure a lesser sentence has a fair and just reason to

withdraw her guilty plea would essentially create an automatic right to withdraw a

guilty plea. Such a holding would be contrary to established precedent. Heid, 651

F.3d at 853; Olson, 2012 S.D. 55, ¶ 18, 816 N.W.2d at 836.

[¶15.]         A number of additional factors support the conclusion that Kvasnicka

has not stated a fair and just reason to withdraw her plea. The transcript of the

plea hearing firmly establishes that the circuit court thoroughly canvassed

Kvasnicka regarding her constitutional rights and the effect of her plea, and

Kvasnicka does not dispute that she entered her plea knowingly and voluntarily.

See Bowman, 348 F.3d at 414; Grosh, 387 N.W.2d at 506. Notably, Kvasnicka does


4.       It would be difficult to argue otherwise. The Supreme Court has held that
         even “a plea of guilty which would not have been entered except for the
         defendant’s desire to avoid a possible death penalty and to limit the
         maximum penalty to life imprisonment or a term of years was not for that
         reason compelled within the meaning of the Fifth Amendment.” North
         Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 164, 27 L. Ed. 2d 162
         (1970).

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not claim to be innocent. See Heid, 651 F.3d at 853-54; Grosh, 387 N.W.2d at 506.

Indeed, her assertion that she is unable to recall the events of July 10, 2010,

precludes any such claim. The delay between Kvasnicka’s plea on August 15, 2013,

and her motion to withdraw that plea on June 12, 2014, also weighs against

granting the motion. 5 See United States v. Wynn, 663 F.3d 847, 850 (6th Cir. 2011)

(holding eight-month delay between plea and attempted withdrawal weighed

“heavily” against granting the motion even though defendant claimed to have only

been aware of the possibility of withdrawal for two months); United States v. Jones,

479 F.3d 975, 978 (8th Cir. 2007) (“[A] five month delay is a reason not to grant . . .

a motion [to withdraw a guilty plea].”); United States v. Rosen, 409 F.3d 535, 547

(2d Cir. 2005) (holding four-month delay weighed against granting motion to

withdraw a guilty plea). Additionally, Kvasnicka benefitted from the assistance of

competent counsel throughout the plea process. 6 See Bowman, 348 F.3d at 414;

Grosh, 387 N.W.2d at 506.

[¶16.]         In addition to the foregoing factors, the State also asserts that

granting Kvasnicka’s motion to withdraw her guilty plea would have prejudiced the

State’s prosecution of the case. Deputy State’s Attorney Ryan Sage testified during

the August 13, 2014 hearing that he was unable to locate Christopher Jones, who

testified before the grand jury but not at trial, after Kvasnicka sought to withdraw


5.       Although Kvasnicka asserts that she was initially unaware that she could
         attempt to withdraw her plea, the record reflects that she became aware by
         February 2014 at the latest.

6.       At the August 15, 2013 plea hearing, the court asked Kvasnicka if she was
         satisfied with the assistance she had received from her attorney. Kvasnicka
         replied, “Very much so.”

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her plea. Jones testified before the grand jury that he was travelling south on

Interstate 229 in the southbound lane at approximately 65 miles per hour when he

observed Kvasnicka travelling south in the northbound lane. The State expected

Jones to testify during the second trial that he estimated Kvasnicka was traveling

at 80 miles per hour, that she was accelerating faster than his own vehicle, and that

she did not attempt to deviate from her course prior to the collision.

[¶17.]       Kvasnicka asserts the State’s prosecution would not have been

prejudiced because Jones did not testify during the first trial and other witnesses

were available to testify regarding Kvasnicka’s driving. Considering our decision in

Kvasnicka’s first appeal, her argument here is unavailing. In her first appeal, this

Court held that the State’s expert witness’s testimony regarding the kinetic energy

of Kvasnicka’s vehicle was not relevant, in part, because the expert witness did not

know or base his calculations on the actual speed of Kvasnicka’s vehicle. State v.

Kvasnicka, 2013 S.D. 25, ¶¶ 32-33, 829 N.W.2d 123, 131. This Court further held

that the circuit court’s admission of this evidence prejudiced Kvasnicka—i.e., that

without such evidence, the jury would have likely acquitted Kvasnicka of the

charge. Id. ¶ 33, 829 N.W.2d at 131. The implication of that holding is that on

retrial, the absence of the excluded evidence would likely result in Kvasnicka’s

acquittal. Although other individuals witnessed the accident, Kvasnicka has not

directed our attention to any other witness capable of offering testimony

establishing the speed and acceleration of her vehicle prior to the collision.

Therefore, it appears that only Jones’s testimony is capable of filling the void in

vital evidence that resulted from Kvasnicka’s successful first appeal. Because the


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State’s prosecution of Kvasnicka would be prejudiced if she were allowed to

withdraw her guilty plea, this factor also weighs against concluding that she has

stated a fair and just reason for withdrawing her plea. See Heid, 651 F.3d at 854;

Schmidt, 2012 S.D. 77, ¶ 23, 825 N.W.2d at 896.

                                     Conclusion

[¶18.]       Lying to a plea-taking court does not support a fair and just reason for

later withdrawing a guilty plea, and Kvasnicka’s fear in proceeding to trial—a fear

that was not so great as to make her plea involuntary—is not a compelling reason

sufficient to justify such falsehood. Even if it did, Kvasnicka does not assert that

her plea was not knowing and voluntary, she does not claim to be innocent, she

waited at least four months and as many as ten months to attempt to withdraw her

plea, the State’s prosecution would be prejudiced if she were allowed to withdraw

her plea, and she entered her plea with the guidance of competent counsel. Under

these facts, we cannot conclude that the circuit court abused its discretion by

denying Kvasnicka’s motion to withdraw her guilty plea. Therefore, we affirm.

[¶19.]       ZINTER, SEVERSON, WILBUR, and KERN, Justices, concur.




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