J-S19017-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

JAMES BRADLEY

                            Appellant                    No. 1828 EDA 2014


                   Appeal from the PCRA Order May 16, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0012564-2007


BEFORE: STABILE, J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.:                                  FILED MAY 01, 2015

        James Bradley appeals from an order dismissing his petition for relief

under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et seq. We

affirm.

        A jury found Bradley guilty of possession with intent to deliver 6.9

grams of crack cocaine (“PWID”).1              On April 30, 2009, the trial court

sentenced Bradley to 5-10 years’ imprisonment.2 Bradley filed timely post-

sentence motions, which the trial court denied, followed by a timely direct

appeal and timely opening and supplemental Pa.R.A.P. 1925(b) statements.

____________________________________________


1
    35 P.S. § 780-113(a)(30).
2
  On the same date, Bradley pled guilty to PWID charges at other caption
numbers. The PWID charges and sentences at the other captions numbers
are not at issue in this appeal.
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On direct appeal, Bradley argued, inter alia, that the trial court erroneously

applied the Sentencing Guidelines Youth/School Enhancement, 204 Pa.Code

303.10(b), at sentencing, and erroneously considered impermissible factors

at sentencing. On August 23, 2011, this Court affirmed Bradley’s judgment

of sentence.     On July 27, 2011, the Pennsylvania Supreme Court denied

Bradley’s petition for allowance of appeal.

       On March 7, 2012, Bradley filed a timely PCRA petition.      The court

appointed PCRA counsel, who filed a Turner/Finley3 letter on February 25,

2014 and a motion to withdraw as counsel on February 26, 2014. On March

20, 2014, the PCRA court filed a notice of intent to dismiss Bradley’s PCRA

petition without a hearing pursuant to Pa.R.Crim.P. 907.        On March 31,

2014, the PCRA court granted PCRA counsel leave to withdraw. On May 16,

2014, the PCRA court dismissed Bradley’s petition.

       Bradley filed a timely notice of appeal to this Court.    On June 25,

2014, the PCRA court ordered Bradley to file a Pa.R.A.P. 1925(b) statement

within 21 days.       On August 4, 2014, Bradley filed an untimely Pa.R.A.P.

1925(b) statement pro se.

       Bradley raises the following issues in his appellate brief, which we

paraphrase and re-order for the sake of clarity: (1) ineffective assistance of

counsel for failure to prepare Bradley or other witnesses for trial; (2)

____________________________________________


3
 Commonwealth v. Turner, 544 A.2d 927 (Pa.1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa.Super.1988).



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ineffective assistance of counsel for failure to explain that Bradley could

receive a lengthier sentence if he elected to have a jury trial; (3) ineffective

assistance for failing to challenge the court’s improper calculation of

Bradley’s prior record score; (4) ineffective assistance of counsel for failure

to object to improper calculation of Bradley’s prior record score at

sentencing; (5) ineffective assistance of PCRA counsel for failure to allege

ineffective assistance of trial counsel; and (6) an error of law by the trial

court by imposing a mandatory minimum sentence based on facts that were

not proved to the jury beyond a reasonable doubt.

      Our standard and scope of review are well-settled:

            We review an order dismissing a petition under the
            PCRA in the light most favorable to the prevailing
            party at the PCRA level. This review is limited to the
            findings of the PCRA court and the evidence of
            record. We will not disturb a PCRA court’s ruling if it
            is supported by evidence of record and is free of
            legal error. This Court may affirm a PCRA court’s
            decision on any grounds if the record supports it. We
            grant great deference to the factual findings of the
            PCRA court and will not disturb those findings unless
            they have no support in the record. However, we
            afford no such deference to its legal conclusions.
            Further, where the petitioner raises questions of law,
            our standard of review is de novo and our scope of
            review is plenary.

                                     ***
            The Turner/Finley decisions provide the manner for
            postconviction    counsel    to    withdraw    from
            representation. The holdings of those cases mandate
            an independent review of the record by competent
            counsel before a PCRA court or appellate court can
            authorize an attorney’s withdrawal. The necessary
            independent review requires counsel to file a “no-

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           merit” letter detailing the nature and extent of his
           review and list each issue the petitioner wishes to
           have examined, explaining why those issues are
           meritless. The PCRA court, or an appellate court if
           the no-merit letter is filed before it, see Turner,
           supra, then must conduct its own independent
           evaluation of the record and agree with counsel that
           the petition is without merit....

           [T]his Court [has] imposed additional requirements
           on counsel that closely track the procedure for
           withdrawing on direct appeal.... [C]ounsel is required
           to contemporaneously serve upon his [or her] client
           his [or her] no-merit letter and application to
           withdraw along with a statement that if the court
           granted counsel’s withdrawal request, the client may
           proceed pro se or with a privately retained
           attorney....

Commonwealth v. Rykard, 55 A.3d 1177, 1183–84 (Pa.Super.2012)

(some citations and footnote omitted).

     Our review of the record confirms that counsel substantially complied

with the Turner/Finley procedural requirements to withdraw.         Specifically,

counsel filed a detailed 11-page letter explaining why she believed Bradley’s

claims lacked merit.   She sent this letter to Bradley and sent him her

petition to withdraw the following day. She informed Bradley of his right to

retain private counsel or proceed pro se.   Bradley did not file a response.

Accordingly, we will proceed with our independent review of the questions

presented to determine if counsel correctly concluded that the issues raised

had no merit.




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      Bradley’s first two claims both allege ineffective assistance of counsel

prior to and/or during trial – specifically, ineffectiveness for failure to

prepare Bradley or other witnesses for trial and ineffectiveness for failure to

explain that Bradley could receive a lengthier sentence if he elected to have

a jury trial. To obtain relief on a claim of ineffective assistance of counsel,

the PCRA petitioner must satisfy the performance and prejudice test set

forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). Specifically,

the petitioner must establish that: (1) the underlying claim has arguable

merit; (2) no reasonable basis existed for counsel’s actions or failure to act;

and (3) the petitioner suffered prejudice as a result of counsel’s error, with

prejudice measured by whether there is a reasonable probability that the

result of the proceeding would have been different.       Commonwealth v.

Pierce, 527 A.2d 973, 975 (Pa.1987).         Counsel is presumed effective.

Charleston, 94 A.3d at 1019.     A court need not analyze the elements of an

ineffectiveness claim in any particular order of priority; if a claim fails any

necessary element of the Strickland test, the court may proceed to that

element first. Commonwealth v. Albrecht, 720 A.2d 693, 701 (Pa.1998).

Additionally, counsel cannot be deemed ineffective for failing to raise a

meritless claim. Commonwealth v. Jones, 912 A.2d 268, 278 (Pa.2006).

      Bradley has waived his first two arguments by failing to file a timely

Pa.R.A.P. 1925(b) statement.      An appellant must file his statement of

matters complained of on appeal within the time specified in an order to


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submit a Pa.R.A.P. 1925(b) statement.4 The court’s order docketed June 25,

2014 specifically directed Bradley to file his Pa.R.A.P. 1925(b) statement

within 21 days, or by July 16, 2014. The docket further states that the Clerk

of Court served this order on Bradley via first class mail on June 25, 2014.

Bradley filed his Pa.R.A.P. 1925(b) statement on August 4, 2014, 19 days

late.

        In general, issues raised in an untimely Pa.R.A.P. 1925(b) statement

are waived.     Commonwealth v. Castillo, 888 A.2d 775, 776 (Pa.2005).

But when a criminal defendant is represented by counsel, counsel’s failure to

file a timely Pa.R.A.P. 1925(b) statement constitutes ineffective assistance

per se.       Commonwealth v. Thompson, 39 A.3d 335, 340, n.11

(Pa.Super.2012). The remedy for such ineffectiveness is remand to the trial

court, either for the filing of a Rule 1925(b) statement nunc pro tunc or the

filing of a Rule 1925(a) opinion addressing the issues raised in an untimely

1925(b) statement. Pa.R.A.P. 1925(c)(3); Thompson, supra.

        Pa.R.A.P. 1925 makes no such allowance when (as here) the

defendant represents himself on appeal pro se.        In general, a pro se

defendant’s failure to file a timely Pa.R.A.P. 1925(b) statement in a PCRA




____________________________________________


4
 The court cannot specify a time period shorter than 21 days.      Pa.R.A.P.
1925(b).



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appeal constitutes waiver of all issues.5        Commonwealth v. Butler, 812

A.2d 631, 634 (Pa.2002) (PCRA defendant’s failure to comply with order to

file Pa.R.A.P. 1925(b) statement resulted in automatic waiver of any issues

he may have raised on appeal, even though Commonwealth never briefed or

argued waiver). By filing an untimely Pa.R.A.P. 1925(b) statement pro se,

Bradley has waived the first two issues in his brief.6

       We consider Bradley’s third and fourth arguments together, because

they involve the same issue.              Bradley asserts that trial counsel was

ineffective for failing to argue that the court computed Bradley’s prior record

score improperly. Trial counsel failed to preserve this discretionary issue for

direct appeal; nevertheless, under the Strickland standards articulated

above, this issue lacks arguable merit.

       A claim that the sentencing court misapplied the Sentencing Guidelines

“constitutes a challenge to the discretionary aspects of sentence [which]
____________________________________________


5
  Issues relating to the legality of the defendant’s sentence constitute one
exception to the waiver rule. Commonwealth v. Orellana, 86 A.3d 877,
883 n. 7 (Pa.Super.2014) (citation omitted) (Superior Court “is endowed
with the ability to consider an issue of illegality of sentence sua sponte”).
Notwithstanding this exception to the waiver rule, legality of sentence issues
must be timely raised within the PCRA’s statute of limitations in order for
this Court to have jurisdiction to decide them. Commonwealth v. Miller,
102 A.3d 988, 994-96 (Pa.Super.2014).
6
  In addition, Bradley waived his second issue – trial counsel was ineffective
for failing to advise Bradley that he could receive a higher sentence by
proceeding to a jury trial – because he failed to raise it in his PCRA petition.
Commonwealth v. Elliott, 80 A.3d 415, 430 (Pa.2013).




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presents a substantial question.”     Commonwealth v. Archer, 722 A.2d

203, 211 (Pa.Super.1998) (en banc). Before this Court can reach the merits

of a challenge to the discretionary aspects of a sentence,

            we must engage in a four-part analysis to
            determine: (1) whether the appeal is timely; (2)
            whether the appellant preserved his issue; (3)
            whether the appellant's brief includes a concise
            statement of the reasons relied upon for allowance of
            appeal with respect to the discretionary aspects of
            sentence [see Pa.R.A.P. 2119]; and (4) whether the
            concise statement raises a substantial question that
            the sentence is appropriate under the sentencing
            code.... [I]f the appeal satisfies each of these four
            requirements we will then proceed to decide the
            substantive merits of the case.

Commonwealth v. Antidormi, 84 A.3d 736, 759 (Pa.Super.2014).

      The calculation of Bradley’s prior record score presents a substantial

question,   Archer,   supra,   thus   satisfying   prong     4   of   Antidormi.

Nevertheless, trial counsel failed two of Antidormi’s other prongs: he failed

to challenge the calculation of Bradley’s prior record score during Bradley’s

sentencing hearing or in his post-sentence motions (prong 2), and he

omitted any challenge to Bradley’s prior record score from his opening or

supplemental Pa.R.A.P. 1925(b) statement of matters complained of on

direct appeal (prong 3). Thus, trial counsel failed to preserve this issue for

direct appeal.

      To obtain PCRA relief, however, Bradley must also demonstrate that

trial counsel’s failure to preserve the prior record score issue constitutes

ineffective assistance under Strickland. We conclude that Bradley fails to

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establish Strickland’s arguable merit component, because the trial court

properly calculated his prior record score.           As the PCRA court cogently

explained:

              [Bradley’s] prior record score was correctly
              calculated. [His] prior record score is a 6, and he is
              classified as a ‘Repeat Felony 1 and Felony 2
              Offender Category Offender (‘RFEL’). [His] score is
              the product of his three felony-2 (‘F-2’) convictions,
              [which] are: (1) CP-51-CR-030711-1996, [Bradley’s
              guilty plea] to criminal trespass of building/occupied
              structure       (F-2)7;      CP-51-CR-0601342-1996,
              [Bradley’s conviction for] robbery8; (3) CP-51-CR-
              0601342-1996, [Bradley’s conviction for] criminal
              conspiracy [to commit robbery] … [T]hese three F-2
              convictions cause [his] prior record score to be a 6
              and he is therefore classified as an RFEL offender.

Pa.R.A.P. 1925(a) Opinion, p. 10.9               Thus, Bradley’s third and fourth

arguments fail.

        In his fifth argument, Bradley contends that PCRA counsel was

ineffective for failing to challenge trial counsel’s ineffectiveness.        This

argument is not ripe for review, because claims of PCRA counsel’s

ineffectiveness cannot be raised for the first time in an appeal from the
____________________________________________


7
    18 Pa.C.S. § 3503.
8
    18 Pa.C.S. § 3701.
9
  We observe for the sake of completeness that after correctly computing
Bradley’s prior record score, the court correctly computed the correct offense
gravity score and used the correct sentencing matrix (Youth and School
Enhancement Matrix).9 The standard range sentence under this matrix is
53-81 months. 204 Pa. Code § 303.18(c). The court sentenced Bradley to
60-120 months, well within the standard range.



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denial of a PCRA petition.    Commonwealth v. Henkel, 90 A.3d 16, 20

(Pa.Super.2014).

      Finally, Bradley argues that his sentence is unconstitutional under

Alleyne v. United States, -- U.S. --, 133 S.Ct. 2151 (2013). Alleyne held

that, other than the fact of a prior conviction, any fact that increases the

penalty for a crime beyond the prescribed statutory minimum must be

submitted to a jury and proved beyond a reasonable doubt. Id., 131 S.Ct.

at 2160-61.   Presumably, Bradley argues his sentence is unconstitutional

because the trial court applied the youth/school enhancement factors to his

sentence without a jury and under a preponderance of the evidence

standard.

      Bradley failed to raise Alleyne in his PCRA petition and has raised it

for the first time in his present appeal, more than one year after his

judgment of sentence became final.       This issue is not waived, because

challenges to the legality of a sentence cannot be waived. Miller, 102 A.3d

at 996 (Alleyne challenge to legality of sentence is “not technically

waivable”).   On the other hand, this issue is untimely, because Bradley

raised it for the first time more than one year after his judgment of sentence

became final. As a result, we lack jurisdiction to review it under the PCRA’s

statute of limitations, 42 Pa.C.S. § 9545(b).

      Section 9545    provides that a petition “including a second or

subsequent petition, shall be filed within one year of the date the judgment


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becomes final.” 42 Pa.C.S. § 9545(b)(1); accord Commonwealth v.

Bretz, 830 A.2d 1273, 1275 (Pa.Super.2003). No court has jurisdiction to

hear an untimely PCRA petition.       Commonwealth v. Monaco, 996 A.2d

1076, 1079 (Pa.Super.2010) (citing Commonwealth v. Robinson, 837

A.2d 1157, 1161 (Pa.2003)). A judgment is final “at the conclusion of direct

review, including discretionary review in the Supreme Court of the United

States and the Supreme Court of Pennsylvania, or at the expiration of time

for seeking the review.” 42 Pa.C.S. § 9545(b)(3).

      Three exceptions to the PCRA’s time-bar provide for very limited

circumstances under which a court may excuse the late filing of a PCRA

petition. 42 Pa.C.S. § 9545(b)(1); Monaco, 996 A.2d at 1079.               The late

filing of a petition will be excused if a petitioner alleges and proves:

            (i) the failure to raise the claim previously was the
            result of interference by government officials with
            the presentation of the claim in violation of the
            Constitution or laws of this Commonwealth or the
            Constitution or laws of the United States;

            (ii) the facts upon which the claim is predicated were
            unknown to the petitioner and could not have been
            ascertained by the exercise of due diligence; or

            (iii) the right asserted is a constitutional right that
            was recognized by the Supreme Court of the United
            States or the Supreme Court of Pennsylvania after
            the time period provided in this section and has been
            held by that court to apply retroactively.




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42 Pa.C.S. § 9545(b)(1)(i)-(iii).         A petition invoking an exception to the

PCRA time bar must “be filed within 60 days of the date the claim could have

been presented.” 42 Pa.C.S. § 9545(b)(2).

         In our view, these jurisdictional precepts apply when, as here, (1) the

petitioner timely files a PCRA petition, (2) neglects to raise a particular issue

(e.g., Alleyne) in the PCRA court, but then (3) raises that issue for the first

time on appeal, more than one year after his judgment of sentence becomes

final.    To entertain an issue on appeal under these circumstances would

circumvent the strict jurisdictional time limitations embodied in section

9545.     See Commonwealth v. Edmiston, 851 A.2d 883, 889 (Pa.2004)

(citing Pa.R.A.P. 302(a) and Commonwealth v. Bond, 819 A.2d 33, 52

(2002)) (“[p]ermitting a PCRA petitioner to append new claims to the appeal

already on review would wrongly subvert the time limitation and serial

petition restrictions of the PCRA”)10.

         With these principles in mind, we observe that Bradley’s judgment of

sentence became final on October 25, 2011, the last day for filing a petition

for writ of certiorari in the United States Supreme Court. Thus, Bradley had

until October 25, 2012 to raise an Alleyne-type claim in a PCRA petition.

Bradley did not raise Alleyne until August 4, 2014, when he cited Alleyne
____________________________________________


10
  In addition, “the proper vehicle for raising new claims is not on PCRA
appeal, but rather in a subsequent PCRA petition.” Edmiston, 851 A.2d at
889.




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in his Pa.R.A.P. 1925(b) statement.     Thus, his attempt to raise Alleyne is

untimely on its face.

      Nor do any of the exceptions in section 9545(b)(i-iii) apply to this

case. Bradley suggests in his brief that Alleyne applies retroactively under

section 9545(b)(iii), because challenges to the illegality of his sentence are

never waived.    We disagree, based on our analysis of the same issue in

Miller.   Miller held that the PCRA court lacked jurisdiction to consider an

Alleyne argument presented in a second PCRA petition filed five years after

the petitioner’s judgment of sentence became final, reasoning:

            Subsection (iii) of Section 9545 [(b)(1)] has two
            requirements. First, it provides that the right
            asserted is a constitutional right that was recognized
            by the Supreme Court of the United States or [the
            Supreme Court of Pennsylvania] after the time
            provided in this section. Second, it provides that the
            right ‘has been held’ by ‘that court’ to apply
            retroactively. Thus, a petitioner must prove that
            there is a ‘new’ constitutional right and that the right
            ‘has been held’ by that court to apply retroactively.
            The language ‘has been held’ is in the past tense.
            These words mean that the action has already
            occurred, i.e., ‘that court’ has already held the new
            constitutional right to be retroactive to cases on
            collateral review. By employing the past tense in
            writing this provision, the legislature clearly intended
            that the right was already recognized at the time the
            petition was filed.

                                    …

            Even assuming that Alleyne did announce a new
            constitutional right, neither our Supreme Court, nor
            the United States Supreme Court has held that
            Alleyne is to be applied retroactively to cases in
            which the judgment of sentence had become final.

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          This is fatal to Appellant’s argument regarding the
          PCRA time-bar. This Court has recognized that a new
          rule of constitutional law is applied retroactively to
          cases on collateral review only if the United States
          Supreme Court or our Supreme Court specifically
          holds it to be retroactively applicable to those cases.
          Commonwealth v. Phillips, 31 A.3d 317, 320
          (Pa.Super.2011), appeal denied, 615 Pa. 784, 42
          A.3d 1059 (2012), citing Tyler v. Cain, 533 U.S.
          656, 663, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001);
          see also, e.g., Commonwealth v. Taylor, 933
          A.2d 1035, 1042 (Pa.Super.2007) (stating, ‘for
          purposes of subsection (iii), the language ‘has been
          held by that court to apply retroactively’ means the
          court announcing the rule must have also ruled on
          the retroactivity of the new constitutional right,
          before the petitioner can assert retroactive
          application of the right in a PCRA petition[ ]’), appeal
          denied, 597 Pa. 715, 951 A.2d 1163 (2008).
          Therefore, Appellant has failed to satisfy the new
          constitutional right exception to the time-bar.

                                  …

          We are aware that an issue pertaining to Alleyne
          goes to the legality of the sentence. See
          Commonwealth v. Newman, 99 A.3d 86, 90
          (Pa.Super.2014) (en banc) (stating, ‘a challenge to a
          sentence premised upon Alleyne likewise implicates
          the legality of the sentence and cannot be waived on
          appeal[ ]’). It is generally true that ‘this Court is
          endowed with the ability to consider an issue of
          illegality of sentence sua sponte.’ Commonwealth
          v. Orellana, 86 A.3d 877, 883 n. 7 (Pa.Super.2014)
          (citation omitted). However, in order for this Court to
          review a legality of sentence claim, there must be a
          basis for our jurisdiction to engage in such review.
          See Commonwealth v. Borovichka, 18 A.3d 1242,
          1254 (Pa.Super.2011) (stating, ‘[a] challenge to the
          legality of a sentence ... may be entertained as long
          as the reviewing court has jurisdiction[ ]’) (citation
          omitted). As this Court recently noted, ‘[t]hough not
          technically waivable, a legality [of sentence] claim
          may nevertheless be lost should it be raised ... in an

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            untimely PCRA petition for which no time-bar
            exception applies, thus depriving the court of
            jurisdiction over the claim.’ [Commonwealth v.]
            Seskey, [86 A.3d 237,] 242 [(Pa.Super.2014)]. As a
            result, the PCRA court lacked jurisdiction to consider
            the merits of Appellant’s second PCRA petition, as it
            was untimely filed and no exception was proven…

Id. at 994, 995, 996 (emphasis added; certain citations omitted).      Miller

squarely applies to this case.   Like the petitioner in Miller, Bradley raised

Alleyne more than one year after his judgment of sentence became final.

Moreover, even if Alleyne announced a new constitutional right, neither the

United States Supreme Court nor the Pennsylvania Supreme Court has held

that this right applies retroactively. Thus, although Alleyne implicates the

legality of Bradley’s sentence, we lack jurisdiction to address this issue.

Miller, 102 A.3d at 995, 996.

     Bradley’s Alleyne argument suffers from an additional jurisdictional

defect not present in Miller.      Whereas the petitioner in Miller raised

Alleyne in a PCRA petition within sixty days after Alleyne’s issuance,

Bradley did not raise Alleyne until over one year after its issuance.

Consequently, Bradley’s Alleyne claim is untimely under the sixty-day

deadline in section 9545(b)(2) for filing exceptions to the PCRA’s one-year

time bar.

     Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/1/2015




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