                                                                                                FL ED
                                                                                    COLI.            iOF APPEALS
                                                                                            DIVIS

                                                                                  2Df5 AUG I f
    IN THE COURT OF APPEALS OF THE STATE                                          SOF
                                                                                         WASHG'I'                   ON
                                                                                    ATE OF V/ A%.
                                                                                                  11fgGTON
                                                 DIVISION II                      BY
                                                                                            DEP TY
 STATE OF WASHINGTON,                                                             No. 45777 -6 -II


                                        Respondent,


            MA



 ANDREW HILTON. SMITH,                                                    UNPUBLISHED OPINION




         LEE, J. — Andrew Hilton Smith appeals his failure to register as a sex offender conviction


                     bench trial. We hold that ( 1)       defendant               his           to       jury   trial, ( 2)   the
following        a                                    a               can waive         right        a




failure to register as a sex offender statute does not unconstitutionally impair the right to travel and

freely   move, (      3) any error in allowing Smith to be handcuffed at his bench trial was harmless, and

4) his trial counsel was not deficient for failing to object to the handcuffs. Therefore, we affirm

Smith' s    conviction.       However, we remand for resentencing because the trial court improperly

included out-of-state convictions without determining their comparability with Washington

statutes.    On remand, the trial court shall consider Smith' s current or future ability to pay before

imposing discretionary legal financial obligations.

                                                          FACTS


          The underlying facts in this case are not disputed. The State charged Smith with failure to

register as a sex offender under          former RCW 9A.44. 130 ( 2011)           and   former RCW 9A.44. 132( 1)
No. 45777 -6 -II



             1                                                                        2
    2011).       Smith filed     a waiver of     his    right   to   a   jury   trial .    Smith stipulated that he had been


convicted of a sex offense that required registration.


             At the bench trial, Smith           appeared        in handcuffs.            Defense counsel requested that the


handcuffs be removed so that Smith was able to communicate with defense counsel. In response


to the trial court' s inquiry, the Department of Corrections officer stated that he was comfortable

with removing one of Smith' s handcuffs. The trial court determined Smith' s dominant hand, and

the officer removed one handcuff.4 Smith did not object to the removal of only one handcuff. The

trial court found Smith guilty of failure to register as a sex offender.

             At sentencing, Smith          stipulated   to the   criminal       history    provided   by the   State.'   The felony

judgment         and sentence     included two       prior convictions          from Oregon. Smith did not object to the


inclusion        of   the Oregon    convictions.       Smith also did not object to the trial court' s. calculation of


his    offender score.         The State and defense counsel agreed that the standard range was 22 to 29


months based on Smith' s offender score. The State requested that the trial court impose standard

legal financial         obligations (      LFOs).   and an additional $           100     fingerprinting   cost.   The trial court




1
    Former RCW 9A. 44. 132( 1)              provided that "[     a] person commits the crime of failure to register as
a sex offender if the person has a duty to register under [ former] RCW 9A.44. 130 for a felony sex
offense and knowingly fails to comply with any of the requirements of [former] RCW 9A.44. 130."
2
    Presumably, Smith pleaded not guilty, although Smith did not provide a record of his pleading.

3 The record does not indicate the name or gender of the officer.

4 Presumably, the officer removed the handcuff from Smith' s dominant hand, but the record does
not indicate which hand.


     Defense       counsel    stated, "[   P] ertaining to the history that has been provided, Mr. Smith does
stipulate        to those   prior convictions."      Verbatim Report of Proceedings ( VRP) at 126.




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No. 45777 -6 -II



                                                                     6
sentenced     Smith   and    imposed the "    standard"      LFOs,       including    the $   100 fingerprinting cost.

Verbatim Report       of   Proceedings ( VRP)   at   131.    Smith did not object to either the State' s request


for or the trial court' s imposition of LFOs. Smith appeals.

                                                     ANALYSIS


A.      JURY TRIAL WAIVER


        Smith claims that his conviction is invalid because he was found guilty without a jury trial.

Specifically, Smith argues that under article I, sections 21 and 22 of the Washington Constitution,

a criminal    defendant may     not waive a   jury trial.'       We disagree.


        We review constitutional issues de novo. State v. Benitez, 175 Wn. App. 116, 126, 302

P. 3d 877 ( 2013). Article I, section 21 provides,

        The right of trial by jury shall remain inviolate, but the legislature may provide for
        a jury of any number less than twelve in courts not of record, and for a verdict by
        nine or more jurors in civil cases in any court of record, and for waiving of the jury
        in civil cases where the consent of the parties interested is given thereto.


Article I, section 22 also provides,


         In   criminal prosecutions   the   accused shall    have the     right ...   to have a speedy public.
        trial by an impartial jury of the county in which the offense is charged to have been
         committed.




e
    Smith' s LFOs     consisted of $500 victim assessment                fee, $ 100 deoxyribonucleic acid ( DNA)
testing fee, $ 200           filing fee, $ 110 " sheriff service fees," $ 150 incarceration fee, $ 825
                      criminal

attorney fees, and $ 100 fingerprinting fee. Clerk' s Papers ( CP) at 8. The victim assessment fee,
DNA fees, and filing fees are mandatory LFOs. See State v. Lundy, 176 Wn. App. 96, 102, 308
P. 3d 755 ( 2013).    The attorney fees, sheriff service fees, incarceration fees, and fingerprinting fees
arediscretionary LFOs. See Lundy, 176 Wn. App. at 107. On appeal, Smith assigns error to the
imposition of attorney fees and fingerprinting fees.

  Smith does not argue that his waiver of a jury trial was not knowing, intelligent, or voluntary, or
that the record does not adequately establish that his waiver was valid.



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No. 45777 -6 -II



             Smith claims that a Gunwall8 analysis is required because Washington' s constitutional


right   to   a   jury   trial   is broader than the federal        constitutional right..   Smith argues that applying a

Gunwall analysis to article I, sections 21 and 22 will define the scope of a valid waiver of these


constitutional provisions. And he suggests that such an analysis will show that all felony cases in

Washington must be tried to a jury, regardless of the party' s wishes.9

             But Gunwall " addresses the extent of a right and not how the right in question may be

waived."         State   v.   Pierce, 134 Wn.       App.   763, 773, 142 P. 3d 610 ( 2006). In Pierce, we explained


that although Washington' s constitutional right is more expansive than the federal right, it does

not follow that additional safeguards are required to validly waive the more expansive right. Id.

Thus, the extent of protection offered under the state constitution has no bearing on the legal

standard for waiving the right. Id. Accordingly, a Gunwall analysis does not apply to the issue of

waiver of a state or federal constitutional right. Id.


             We have repeatedly declined the invitation to                  reconsider   Pierce.   Washington allows a


defendant to        waive a       jury   trial.   Benitez, 175 Wn. App. at 127; State v. Stegall, 124 Wn.2d 719,

723, 881 P. 2d 979 ( 1994);                see also   State   v.   Forza, 70 Wn.2d 69, 70- 71, 422 P. 2d 475 ( 1966)




8 State v. Gunwall, 106 Wn.2d 54, 720 P. 2d 808 ( 1986).

9 Although Smith asserts that a Gunwall analysis is necessary, he does not actually compare the
state and        federal      constitution    in his brief.    The purpose of a Gunwall analysis is to determine
whether the state constitution should be interpreted as being more protective of individual rights
than the federal constitution. However, that does not appear to be what Smith is arguing. Rather,
Smith appears to argue that the state constitution does not allow a criminal defendant to waive a
jury trial. We disagree. See Benitez, 175 Wn. App. at 126- 27; State v. Lane, 40 Wn.2d 734, 736,
246 P. 2d 474 ( 1952); RCW 10. 01. 060.



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No. 45777 -6 -II



              the           to       jury   trial   is              to a   knowing,    intentional,   and                waiver);   State
 holding            right        a                       subject                                            voluntary


v. Lane, 40 Wn.2d 734, 737, 246 P. 2d 474 ( 1952) ( holding                              defendant may waive a jury trial).

B.        CONSTITUTIONALITY OF FORMER RCW 9A.44. 130 - SEX OFFENDER REGISTRATION


          Smith claims that the sex offender registration statute, former RCW 9A.44. 130, is


unconstitutional on its face. Specifically, Smith argues that the statute is unconstitutionally broad

and burdens his fundamental right to travel and right to freedom of movement. We disagree.

          We    review       the constitutionality             of   a statute   de   novo.   State v. Enquist, 163 Wn. App. 41,

45, 256 P. 3d 1277 ( 2011),              review          denied, 173 Wn.2d 1008 ( 2012). " To demonstrate that [ former]


RCW 9A.44. 130 is                unconstitutional on           its face, [ Smith] must show that ` no set of circumstances


exists   in   which    the   statute, as       currently       written, can     be constitutionally      applied."'      State v. Smith,


185 Wn.       App.    945, 952, 344 P. 3d 1244,                review      denied, _     P. 3d (        July    8, 2015) (   quoting City

ofRedmond v. Moore, 151 Wn.2d 664, 669, 91 P. 3d 875 ( 2004)).

          Smith      asserts      that the    statute      impairs the      constitutional right     to travel. " The right to travel,


which    includes the            right   to travel        within a state,"      and the right to freely move are fundamental

under    the United States Constitution., Enquist, 163 Wn.                              App.   at   50; State   v.   J.D.,   86 Wn. App.

501, 506, 937 P. 2d 630 ( 1997).                    Regulations limiting fundamental rights may only be justified by

a compelling state interest. Enquist, 163 Wn. App. at 50. A state law implicates the right to travel

when the law' s primary objective is to deter travel and the law actually deters travel. Id.; Smith,

185 Wn. App. at 953.

          Smith argues that former RCW 9A.44. 130 impairs his fundamental right to travel because

he may be subject to criminal prosecution for leaving his residence for more than three nights.

Smith is incorrect.




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No. 45777 -6 -II




        We recently decided this precise issue in Smith, 185 Wn. App. at 952. In Smith, we rejected

the claim that former RCW 9A.44. 130 prevented the defendant from leaving his home for more

than three   nights.   Id.      at   953.   Smith held that former RCW 9A.44. 130 does not impair the


constitutional right   to travel      and   to   freely   move.        Id.   at    954. Smith also held that even if former


RCW 9A.44. 130 did impair the right to travel, that impairment is justified by a compelling state

interest. Id. at 955. Accordingly, Smith' s claim fails.

C.      RESTRAINTS


        Smith argues that the trial court violated his due process rights by allowing him to be

partially handcuffed during his bench trial.10 We disagree.
        We review a trial court' s decision to shackle a defendant for abuse of discretion. State v.

Turner, 143 Wn.2d 715, 724, 23 P. 3d 499 ( 2001);                       State v. Walker, 185 Wn. App. 790, 803, 344

P. 3d 227 ( 2015). A trial court abuses its discretion when its decision is based on untenable grounds


or untenable reasons.       Walker, 185 Wn.           App.    at   799- 800. "` It is fundamental that a trial court is


vested with the discretion to provide for courtroom security, in order to ensure the safety of court

officers, parties, and    the   public."'    Turner, 143 Wn.2d at 725 ( quoting State v. Hartzog, 96 Wn.2d

383, 396, 635 P. 2d 694 ( 1981)).                The trial   court "`     must exercise discretion in determining the

extent to which courtroom security measures are necessary to maintain order and prevent injury.

That discretion    must   be founded        upon a    factual basis          set   forth in the   record."'   State v. E.J.Y., 113


Wn.   App. 940, 951,      55 P. 3d 673 ( 2002) ( quoting               Hartzog, 96 Wn.2d at. 400).




10 Smith argues that the trial court erred by requiring Smith to wear a leg brace at trial. However,
the record does not show that Smith was wearing leg braces or any leg restraints. Presumably,
Smith meant to argue that the trial court erred by requiring him to wear one handcuff.


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No. 45777 -6 -II



          A criminal defendant is entitled to be free from restraints at trial except under extraordinary

circumstances.       E.J.Y., 113 Wn.      App.   at   951. "`    Restraints. are viewed with disfavor because they

may abridge important constitutional rights, including the presumption of innocence, privilege of

testifying in    one' s own   behalf, and   right   to   consult with counsel   during trial."'   Turner, 143 Wn.2d


at 725 ( quoting Hartzog, 96 Wn.2d at 398).

          However, "[    a] claim of unconstitutional shackling is subject to harmless error analysis."

State   v.   Hutchinson, 135 Wn.2d 863, 888, 959 P. 2d 1061 ( 1998).                  The " error does not require


reversal unless it is shown that the use of restraints substantially affected the trial court' s fact

finding." E.J.Y., 113 Wn. App. at 952; Hutchinson, 135 Wn.2d at 888 ( holding that the defendant

was required to " show the shackling had a substantial or injurious effect or influence on the jury' s

verdict").      Further, the likelihood of prejudice is significantly reduced in a proceeding without a

jury. EJ Y., 113 Wn. App. at 952.

             Smith argues that lack of a record establishing the need for handcuffs is reversible error.

Smith does not offer argument that his handcuffs resulted in prejudice or affected the trial court' s


fact   finding   ability,"   or otherwise address harmless error.




i i To the extent that Smith argues that the improper use of restraints is presumptively prejudicial
and    therefore, requires    reversal,   his   argument        fails. To support this argument, Smith relies on In
re Davis in his opening brief and State v. Clark in his reply brief. In re Pers. Restraint ofDavis;
152 Wn. 2d 647, 101 P. 3d 1 ( 2004); State               v.   Clark, 143 Wn.2d 731, 24 P. 3d 1006 ( 2001).     Both

Davis and Clark involved jury trials and are distinguishable. Davis, 152 Wn.2d at 694; Clark, 143
Wn.2d at 774. Furthermore, both Davis and Clark held that a claim of unconstitutional shackling
is subject to a harmless error analysis, Davis, 152 Wn.2d at 694; Clark, 143 Wn.2d at 775, and
both Davis and Clark found that any error in restraining the defendant was harmless. Davis, 152
Wn.2d at 697- 98; Clark, 143 Wn.2d at 777.


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No. 45777 -6 -II



           The State appears to concede that the trial court did not make an adequate record of why it

allowed Smith to remain partially handcuffed. 12 However, the State argues that that Smith has not

shown that the handcuffs substantially affected the trial court' s fact finding, and any error was

harmless.        Further, the State argues that without a jury, the likelihood of prejudice was greatly

reduced. We agree. 13

           Here, there is little risk of prejudice because there was no jury. See E.J.Y., 113 Wn. App.

at 952. And, one of Smith' s handcuffs was removed to allow Smith to. communicate with defense

counsel, which          demonstrates that the trial    court considered   a less   restrictive alternative.   VRP at


5- 6.   Accordingly, the absence of a record establishing the basis for restraints is harmless error,

and     Smith'   s claim    fails.   See E.J.Y.,   113 Wn. App. at 952 ( holding that the improper use of

restraints do not " require reversal unless it is shown that the use of restraints substantially affected

the trial court' s fact finding")

D.         INEFFECTIVE ASSISTANCE OF COUNSEL


           Smith argues that his trial counsel was ineffective for failing to object to Smith being
handcuffed at trial. We disagree.


           We review ineffective assistance of counsel claims de novo. State v. Sutherby, 165 Wn.2d

870, 883, 204 P. 3d 916 ( 2009).            A defendant claiming ineffective assistance of counsel has the



12 However, contrary to Smith' s contention, the State does not appear to concede " that the trial
court allowed [ Smith] to be brought to trial in restraints in the absence of any impelling necessity."
Reply Br. of Appellant at 4.

13 For the first time in his reply brief, Smith claims that the restraints interfered with his right to
testify.     We do       not   address   issues   raised   for the time in the reply brief.      Cowiche Canyon

Conservancy        v.   Bosley,   118 Wn.2d 801, 809, 828 P. 2d 549 ( 1992).
No. 45777 -6 -II



burden to        establish   that ( 1)      counsel' s     performance      was       deficient   and (   2) the performance


prejudiced      the defendant'      s case.    Strickland v. Washington, 466 U. S. 668, 687, 104 S. Ct. 2052,


80 L. Ed. 2d 674 ( 1984).            Failure to establish either prong is fatal to an ineffective assistance of

counsel claim. Strickland, 466 U. S. at 700.

             Counsel' s performance is deficient if it falls below an objective standard of reasonableness.


State   v.   Stenson, 132 Wn.2d 668, 705, 940 P. 2d 1239 ( 1997), cert. denied, 523 U.S. 1008 ( 1998).


Our scrutiny of counsel' s performance is highly deferential; it strongly presumes reasonableness.

State   v.   Grier, 171 Wn.2d 17, 33, 246 P. 3d 1260 ( 2011).                       To rebut this presumption, a defendant


bears the burden of establishing the absence of any legitimate trial tactic explaining counsel' s

performance. Id.


             In support of his argument that his trial counsel was deficient, Smith argues that a


 reasonable attorney would have acted to protect his client' s constitutional right to appear in court

free from      restraint."   Br.    of    Appellant   at   12.    This argument fails because the record shows that


Smith'   s    trial   counsel asked       the court to     remove      Smith'   s   handcuffs.    Furthermore, as discussed


above, Smith has failed to demonstrate any prejudice resulting from having one hand restrained.

Because Smith fails to demonstrate that his trial counsel rendered deficient performance that


prejudiced his case, his claim of ineffective assistance of counsel fails.


E.           OFFENDER SCORE


             Smith argues that the trial court erred in calculating his offender score because his prior

Oregon convictions ( 1) were not comparable to Washington felonies and should not have been

included in his        offender score and ( 2) should            have been " washed       out."   Br. of Appellant at 36. At


trial, Smith      stipulated   to   his   criminal   history,    which   included the Oregon         convictions.   The State




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No. 45777 -6 -II



argues that Smith waived any challenge to the calculation of his offender score .because he

expressly      acknowledged         his   criminal      history,   which ' includes    out-of-state   convictions.    We


disagree.


          We    review    de    novo   the trial   court' s calculation of a     defendant'   s offender score.   State v.


Olsen, 180 Wn.2d 468, 472, 325 P. 3d 187 ( 2014). A defendant' s offender score, together with the


seriousness level of his current offense, dictates the standard sentencing range used in determining

his   sentence.    RCW 9. 94A. 530( 1). "           If a defendant has been erroneously sentenced, we remand

 the]   case   to the sentencing       court   for resentencing." 14 State v. Ross, 152 Wn.2d 220, 229, 95 P. 3d


1225 ( 2004).


          A trial court properly includes an out-of-state prior conviction in a defendant' s offender

score only if the convictions are comparable to Washington convictions. State v. Arndt, 179 Wn.

App.    373, 378, 320 P. 3d 104 ( 2014);            see   RCW 9. 94A.530( 1),      former RCW 9. 94A.525( 3) LAWS


OF 2013, 2d       Spec. Sess.,      ch.   35, §    8.    Generally, the State bears the burden of proving by a

preponderance of the evidence the existence and comparability of the out- of-state offenses. Olsen,

180 Wn.2d         at   472.     However, a trial court can properly include a defendant' s out-of-state

convictions in a defendant' s offender score where the defendant affirmatively acknowledges the

existence and comparability of the prior convictions. State v. Mendoza, 165 Wn.2d 91.3, 927, 205

P. 3d 113 ( 2009);        see   Ross, 152 Wn.2d           at   233. The " mere failure to object to a prosecutor' s




14 To the extent that Smith argues that the sentencing court cannot rely on the underlying facts of
the   out- of-state     conviction     in its comparability        analysis,   he is incorrect.   In making its factual
determination          about   the comparability        of an out- of-state conviction, "     the sentencing court may
rely on facts in the out-of-state record only if they are admitted, stipulated to, or proved beyond a
reasonable      doubt."    State v. Arndt, 179 Wn. App. 373, 379, 320 P. 3d 104 ( 2014).


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No. 45777 -6 -II



assertions of criminal        history    does   not constitute such an acknowledgment."             Mendoza, 165 Wn.2d


at   928.   If the defendant does not affirmatively acknowledge the existence and comparability, the

trial court must make a factual determination about whether the out- of-state convictions are


comparable to Washington convictions. Id.; Arndt, 179 Wn. App. at 379; RCW 9. 94A.525( 3).

            Here, although Smith stipulated to his criminal history, the record does not demonstrate

that Smith stipulated to the comparability of his prior Oregon convictions to Washington

felonies. l s Therefore, Smith did not affirmatively acknowledge that his prior Oregon convictions

were comparable and            properly included          as a   basis for his   offender score.   Because Smith did not


stipulate to the comparability of his out-of-state convictions and the trial court did not analyze the

comparability          of   Smith' s    out- of-state     convictions,      we remand to the sentencing court for

resentencing.


            Smith' s   argument        that his   prior   Oregon        conviction   should   have been "   washed   out"   is


premised on his argument that the Oregon conviction is not comparable to a Washington


conviction. On remand, Smith can raise his comparability and washout arguments, and the State

can present additional evidence regarding Smith' s prior convictions. See Mendoza, 165 Wn.2d at

W11




is On appeal, Smith did not provide a record of his written stipulation or evidence of the underlying
Oregon convictions.




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No. 45777 -6 -II



F.         LEGAL FINANCIAL OBLIGATIONS


           1.         Current or Future Ability to Pay

           Smith challenges the trial court' s imposition of various LFOs. Smith did not object below,

and we need not consider challenges to a trial court' s imposition of LFOs for the first time on

appeal.     State   v.   Blazina, 182 Wn.2d 827, 832- 33, 344 P. 3d 680 ( 2015). We exercise our discretion


and decline to address Smith' s challenge to the imposition of LFOs made for the first time on

           16
appeal.         RAP 2. 5(    a);   Blazina, 182 Wn.2d        at   832- 33.   However, on remand, we instruct the


sentencing court to consider Smith' s current or future likely ability to pay discretionary LFOs

before     imposing       them,    pursuant   to the Supreme Court' s recent Blazina      decision. Blazina, 182


Wn.2d at 839.


           2.         Fingerprinting Fees

           Smith also argues that the trial court exceeded its authority by including a fingerprinting

cost in Smith' s LFOs. We disagree.


           RCW 10. 01. 160         provides   that "[   t]he court may require a defendant to pay costs" and that

those "[    c] osts shall be limited to expenses specially incurred by the state in prosecuting the

defendant."         Smith summarily asserts that " any costs associated with taking [ Smith' s] fingerprints

were not ` specially        incurred   by the   state   in prosecuting' [ Smith]." Br. of Appellant at 44.




16 Smith was sentenced over six months after we published Blazina, holding that we would not
consider challenges to the trial court' s imposition of LFOs for the first time on appeal. 174 Wn.
App.   906, 301 P. 3d 492,         review granted,      178 Wn. 2d 1010, 311 P. 3d 27 ( 2013).   Therefore, Smith
was on notice that we would not consider an appeal of the trial court' s imposition of LFOs unless
it was challenged in the trial court.



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No. 45777 -6 -II



           Smith'   s assertion,   however, is belied   by   the   record.   The State requested that the LFOs


include expert fees for fingerprinting because

           the Court did order [ the expert] be made available for fingerprinting because
            Smith] wasn' t stipulating to his sex offense initially and then we did find out, I
           think the night before trial, that he' d be stipulating. We had then no need for the
           fingerprints to be ordered taken and [ the expert] to show up the next morning.

VRP   at    125- 26.   The record indicates that the costs were an expense for an expert specifically

ordered to be available for the prosecution of Smith. Accordingly, the trial court did not exceed

its authority by imposing the fingerprinting cost. See RCW 10. 01. 160.

           We affirm Smith' s conviction, but remand for resentencing, for the sentencing court to

determine the comparability of Smith' s out- of-state convictions and Smith' s current and likely

future ability to pay discretionary LFOs.

           A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate reports, but will be filed for public record in accordance with RCW


2. 06. 040, it is so ordered.




                                                                                     Lee, J.
 We concur:




               W--
                       WWorswick F. J.




                             axa, J.710




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