[Cite as State v. Parker, 2019-Ohio-5118.]


                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                     :

                 Plaintiff-Appellee,               :
                                                              No. 108133
                 v.                                :

ANDRE PARKER,                                      :

                 Defendant-Appellant.              :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: December 12, 2019


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                              Case No. CR-18-629347-A


                                             Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Jonathan Block, Assistant Prosecuting
                 Attorney, for appellee.

                 Mark A. Stanton, Cuyahoga County Public Defender, and
                 Jeffrey Gamso, Assistant Public Defender, for appellant.


MARY J. BOYLE, P.J.:

                   Defendant-appellant, Andre Parker, appeals the trial court’s denial of

his presentence motion to withdraw his guilty plea. He raises one assignment of

error for our review:
      Andre Parker was deprived of his contractual rights under his plea
      bargain when the state wrongly asserted that he had breached the
      agreement.

               Finding no merit to his assigned error, we affirm.

I. Procedural History and Factual Background

               Parker and his codefendant were indicted in June 2018 on two counts

of aggravated robbery in violation of R.C. 2911.01(A)(1), felonies of the first degree;

two counts of robbery in violation of R.C. 2911.02(A)(2), felonies of the second

degree; one count of felonious assault in violation of R.C. 2903.11(A)(2), a felony of

the second degree; and one count of having weapons while under disability in

violation of R.C. 2923.13(A)(2), a felony of the third degree. All of the counts except

the weapons-disability charge carried one- and three-year firearm specifications, a

54-month firearm specification (which arises when an accused has a prior

conviction for a firearm specification), a notice of prior conviction specification, and

a repeat violent offender specification.

               According to the state’s recitation of the facts, police had surveillance

footage from a gas station where the robbery took place that proved the defendants’

guilt. Parker and his codefendant robbed the victim in his car at gunpoint and stole

the car from the victim. Parker was the driver who drove his codefendant to the gas

station and then drove away once the codefendant secured the stolen vehicle. The

codefendant held the gun during the incident, the gun went “off,” and the victim’s

hand was injured. According to the state, it could also show through testimonial and
video evidence that Parker “actually [held] up the other victim with a firearm as

well.”

              On August 29, 2018, the day scheduled for trial, the state and defense

counsel informed the court that the state had offered a plea deal to Parker but that

they had been in discussions regarding the possibility of a better plea bargain if

Parker cooperated with detectives and led them to his codefendant. The state

explained that Parker had rejected its plea offer. Thus, according to the state, it

would only consider offering a better plea deal if the court granted a continuance at

Parker’s request so that detectives could verify that Parker’s information was true

before they would offer a new plea.

              The court explained that the alleged events took place on

April 22, 2018. Parker was indicted June 7 and arraigned on June 12. On June 19,

the trial court set August 29, 2018 for trial. The court stated that it appeared as if

Parker was attempting to delay trial. The court stated that it believed that trials

should be held “as close in time to the alleged crime as possible” because it was more

“just.” The trial court denied Parker’s request for a continuance.

              The trial court then asked the state to place the plea offer on the

record. At that point, more discussions took place regarding why Parker was trying

to cooperate with detectives so close to the trial date. Defense counsel explained to

the court that Parker was related to his codefendant by blood and that the

codefendant had been hiding from police and no one knew where he was until just

the previous weekend.
              The state then placed the proposed plea offer on the record. The state

explained that it was prepared to delete all of the specifications on Count 1, except

the one-year firearm specification. Thus, Parker would plead guilty to first-degree

aggravated robbery with a one-year firearm specification. Parker would also have

to plead to Count 6 as indicted, having weapons while under disability, a third-

degree felony. The state further indicated that Parker would have to agree to not

contact the victim. The state told the court that because of the 0ne-year firearm

specification, Parker would be pleading to a “mandatory sentence.” The state

indicated that it would request the court to nolle the remaining counts and

specifications. According to the state, the plea would reduce Parker’s minimum time

from 7.5 years to 4 years and would reduce the maximum time from 18.5 years to 12

years.

              The trial court asked Parker if he was interested in the state’s plea

offer. Parker stated that he was not.

              The trial court then asked the state what it was prepared to offer if

Parker provided the information that led the police to his codefendant. The state

explained that it could not “say exactly how much better this gets.” The state told

the court that if Parker provided information that led to the arrest of the

codefendant, it was prepared to “get rid of any mandatory time as well as other

specifications, RVO, repeat violent offender.”      The state further stated that

“cooperation and additional information that might be helpful to the case” would
probably mean that the state would reduce mandatory time and “at least a one level

of reduction based on that cooperation, possibly two depending on the information.”

                 The trial court then asked the parties, “What if [Parker] agreed to

plead guilty to the plea bargain” the state had just proposed “and then sometime

between now and sentencing, let’s say within four to six weeks, he led you to” the

codefendant, “and then prior to sentencing he moved to vacate the plea in favor of a

better plea bargain,” would it be a motion that the state “would be likely to join in?”

The state responded, “Your Honor, given his participation, truthful statements, and

leading to the apprehension of the codefendant, I think the state would then be

prepared to join in on that motion to renegotiate the potential plea deal.”

                 The trial court then turned to defense counsel, asking him what he

thought of the possibility of a plea bargain to the plea that had been offered that day

and then if Parker’s “information turns out to be what he’s claiming it is,” then there

would be a joint motion or an unopposed motion to withdraw that plea before

sentencing. The court explained that although it would not be part of the contract

between the state and Parker, it typically grants agreed motions requesting a plea to

be withdrawn before sentencing. The court stated, “It’s not certain because nothing

is certain, but it’s almost certain to be granted.” The court asked if Parker would

consider that.

                 Defense counsel stated that he would talk to Parker. The trial court

told Parker that it would permit him to talk to his defense counsel privately. The

court stated, “Maybe something can be done here today. Maybe not. If not, again,
that’s fine. Plea bargain is your decision. It’s not your lawyer’s, certainly not the

prosecutor’s, not mine. Your lawyer can recommend or not recommend a certain

plea, but in the end it’s your decision. You have a right to a trial, you have the right

to a fair trial, and as far as I’m concerned, you’re going to get a fair trial here, but

before we begin that fair trial, I want to make sure that all the possibilities of the

negotiated settlement are exhausted. If you would speak to your lawyer for a few

minutes I would appreciate it. Thank you.”

               When the trial court went back on the record, defense counsel

informed the court that Parker was interested in entering into a plea that day. The

court stated, “Well, we’ll talk about this as we go along, if we go along,” but the plea

was “with the possibility but not the guarantee that between now and sentencing

[Parker] might be allowed to withdraw [his] plea and enter a new plea bargain.” The

court then asked Parker if he understood that and Parker indicated that he did.

               The trial court explained to Parker that before he pleaded guilty, it

had to ensure that he pleaded guilty with the “full knowledge of possible

consequences * * * to be sure the plea is voluntary.” Parker then told the court that

he had previously pleaded guilty to a crime, was 28 years old, could write and read

in English, was not under the influence of any drugs or alcohol, did not have any

mental or physical illness, was a United States citizen, was thinking clearly that day,

and was satisfied with his defense counsel.

               Parker then told the trial court that he was still on probation in

Cuyahoga C.P. No. 614o57. The court explained to Parker that if he pleaded guilty
to the offenses that day, that he would be considered “to have violated probation in

614057 because of course it’s a violation of probation to commit a new crime while

on probation.” Parker stated that he understood that.

              Parker then informed the trial court that he also had a case pending

from Monroe County where he had been sentenced to 11 months to county jail but

that it was pending concurrent with his jail time “right now.” Once he completed

that 11 months, he was facing three years of postrelease control in that case. The

court stated that since Parker was not on postrelease control in April 2018, he could

not have violated the terms of his postrelease control.

              The trial court then explained Parker’s constitutional rights to him

and made sure that Parker understood that he was waiving those rights. The court

also explained the charges to Parker as proposed in the plea bargain and the

maximum penalties involved for each offense.

              The trial court then stated that they had discussed the prospect of

Parker entering into a plea bargain where he admits the two charges as described,

but then “sometime within the next two, four, six weeks,” he could request that his

plea be withdrawn to obtain a plea that is “probably more favorable” to him than the

present one. The court cautioned Parker that it wanted him to know “that if that’s

not what occurs then such a motion will be deliberated on and considered and ruled

on, but [it could not] guarantee [him] that such a motion will be granted.” Parker

indicated that he understood that. The court further explained that the reason it
could not guarantee what would happen is because it was not a party to the contract

between him and the state.

               The trial court then explained the duration of postrelease control that

Parker was facing by pleading guilty and the consequences of violating that

postrelease control.

               The trial court further told Parker:

      All right. By the way, one more comment on the possibility that
      between today’s plea and the scheduled sentencing date that you will
      come to the court with a request to withdraw today’s plea in favor of a
      different plea bargain.

      I’ve mentioned to you that that is not certain but let’s just say quite
      likely to be granted if it’s filed. It’s only quite likely to be granted if it’s
      a motion that the prosecutor does not oppose, if he agrees with you and
      your lawyer that today’s plea should be taken back.

      As I understand it, the only way he’s going to agree to that is if you
      provide some [information] that they — their own investigation
      determines is truthful and valuable, probably [information] pertaining
      to [the codefendant]. Do you understand all that?

Parker stated that he understood.

               Defense counsel then requested that the state indicate on the record

that it agreed with the court’s rendition of the plea bargain. The trial court asked

the state that if Parker pleaded guilty today as described and then provided the state

with information that in its “discretion, determine[s] not only to be accurate but of

some value,” would the state “at least not oppose or even join a future motion to

withdraw today’s guilty pleas?” The state replied that the answer to both questions

was “yes.” The state further explained:
      I believe I’ve satisfactorily placed the state’s position and expectation
      per Mr. Parker’s cooperation. Even, in the least, information is
      provided that secures the apprehension of the codefendant, we would
      then agree that we would reevaluate this plea deal. So I think even in
      the minimum, if just information is provided to the state to where the
      codefendant is apprehended, we would join in a motion to withdraw
      that plea.

              The trial court made clear that Parker understood that it was not

likely to look favorably upon a motion to withdraw the plea to reinstate the

indictment and go to trial.

              The state then said:

      I think it’s been made clear even by the Court that if Mr. Parker, over
      the next couple of days or hours or whenever this potential information
      is turned over, decides to — has a change of heart and fails to provide
      any information or fails to cooperate with the investigation, then
      obviously the state would oppose the motion to withdraw the plea and
      we would just ask to move forward on the plea as taken today.

              The trial court further explained to Parker:

      So if you decide this afternoon, tomorrow, the next day that you don't
      want to say anything to the cops or the prosecutor about Lee Hunter,
      you can still file the motion to withdraw your plea, I can’t prevent you
      from filing it, but the prosecutor will oppose it and it’s far less likely to
      be granted. Do you understand all that?

              Parker indicated that he understood. Parker then pleaded guilty as

set forth in the plea agreement. The trial court accepted Parker’s pleas and found

him guilty of aggravated robbery with a one-year firearm specification and having

weapons while under a disability.

              The court held what was scheduled to be a sentencing hearing on

October 1, 2018. At the beginning of the hearing, defense counsel informed the court

that he had filed a written motion to vacate Parker’s plea just before the hearing.
The state informed the court that it did not have time to oppose it in writing but that

it would orally oppose Parker’s motion.

               The court read Parker’s motion into the record, which stated in

relevant part, “After further consideration of the ramifications of his plea the

defendant believes it is in his best interest to petition this court to vacate [his] plea

prior to sentencing.”

               Parker, however, told the court that he hired new counsel and that his

new counsel was present at the hearing. Parker’s previous defense counsel indicated

that he wished to defer to Parker’s wishes and get off of the case, which the trial court

granted.

               Parker’s new defense counsel told the court that he was prepared to

proceed. He informed the court that he also filed a motion to withdraw Parker’s plea

just before sentencing. Parker’s new counsel based Parker’s motion to withdraw on

(1) ineffective assistance of counsel, (2) the plea was “convoluted,” making it too

hard to understand, and (3) actual innocence. Defense counsel asked the court to

set a date to hear Parker’s motion to vacate his plea. He stated:

      Part of the problem and part of the confusion and part of Mr. Parker’s
      fear of the system deals with the fact that, yes, indeed a long colloquy
      and everything was spelled out and the Court gave all parties concerned
      a month. When the State of Ohio showed up Friday with the detective
      without any discussion of the parameters of the proffer et cetera, et
      cetera et cetera, Mr. Parker worried that things were not going to turn
      out the way they were discussed, so the State opposes the continuance
      based on the fact that Mr. Parker didn’t just step to on Friday afternoon.
      There was a month where all of that could have been accomplished.
      With a short continuance and a little bit of further consultation, we’ll
      get Mr. Parker to where he needs to be and I believe his testimony, his
         information is valuable enough to the State that the brief continuance
         would not be a waste of time.

                Over the state’s objection, the court granted Parker’s request for a

continuance. The court indicated that it would set the next hearing for one month

later.

                The court held the next hearing on October 31, 2018. Defense counsel

argued his motion to the court. According to defense counsel, although Parker was

represented by counsel at his plea hearing, he did not understand the “convoluted

plea.” Also according to defense counsel, Parker never had the opportunity to see

the evidence against him. Defense counsel stated that he received the surveillance

footage and was able to watch it one time. According to defense counsel, Parker sat

in a vehicle the entire time and did nothing as his codefendant robbed the victim.

Defense counsel explained that Parker had always maintained his innocence.

Defense counsel requested the court to vacate Parker’s plea so that he could work

with the state to “obtain a mark that either reflects his cooperation and his lack of

culpability.”

                The state told the court that Parker’s “cooperation was not given in

full. There [were] some attempts,” but the state was never able to apprehend his

codefendant based on information provided by Parker. The state explained that it

attempted on September 28, 2018, along with a detective, “to do a proffer

statement,” but that Parker told them that he was not interested with cooperation
and “to go about [their] way.” The state indicated that Parker’s prior defense counsel

had been present.

               The state further explained that Parker provided an address where he

believed his codefendant to be, but his codefendant was not there when police

arrived. According to the state, the codefendant had left the location “approximately

a half hour to 45 minutes beforehand.” The state believed that individuals in the

back of the courtroom at the time of the plea “tipped off” the codefendant. Parker

gave police a few more locations of where the codefendant might be, but it never led

to the arrest of the codefendant.        Police ended up apprehending Parker’s

codefendant through an unrelated domestic dispute. The state told the court that

the deal it had with Parker was that his cooperation must lead to the arrest of the

codefendant.

               Defense counsel responded to the state’s arguments. First, defense

counsel stated that Parker’s plea was not knowingly entered into because “the

complicated and unorthodox conditions” of the plea and of “possibly substituting

another plea at a later date based on conditions” was “more than he comprehended

at that time.” Second, defense counsel argued that Parker’s plea was not voluntary

because he had never seen the evidence against him and that he had maintained his

innocence the entire time. Defense counsel stated that Parker’s father came to him

and asked him to help with Parker’s case because neither Parker nor his father

understood what occurred with Parker’s plea.
                 Defense counsel further argued that Parker cooperated with the state

and police by offering more than one address. Parker stated that he told the police

three different addresses of where they could find his codefendant. Defense counsel

argued that just because the codefendant was not there because maybe someone

“tipped” him off did not mean that Parker did not cooperate. Defense counsel

further argued that it was not Parker’s fault that his codefendant was not there or

that police did not go back to that address to try to apprehend the codefendant at a

later time. Defense counsel stated that Parker did not give police a fake address to

allow his codefendant to “elude apprehension.” Defense counsel told the court that

Parker did everything that was asked of him. Defense counsel asked that the court

give Parker the benefit of his bargain.

                 The court disagreed with defense counsel. The court told defense

counsel that the bargain was not contingent upon Parker’s cooperation. The court

stated that there was a possibility that the parties would come back to the court at a

later date “with effectively a joint motion to withdraw the plea,” but that “never

materialized for whatever reasons.”        The court took Parker’s motion under

consideration.

                 On November 6, 2018, the trial court denied Parker’s motion to

withdraw his plea. The trial court found that Parker’s reasons for vacating his plea

were not legitimate. It noted that there were no issues with ineffective assistance

of counsel because the record indicated that previous counsel had viewed discovery

(a surveillance video from the gas station where the aggravated robbery took place)
with Parker. The trial court further found that Parker did not present evidence of

actual innocence. Regarding Parker’s third claim of “convoluted plea,” the trial

court stated in its judgment entry:

      When the parties came to court on the morning of trial there was simple
      plea bargain offer pending: plead guilty to count one with single one-
      year firearm specification and to count six as charged and everything
      else would be dropped. Parker countered that offer with a proposal that
      he cooperate with the prosecution — “turn state’s evidence” as it is
      occasionally called — in exchange for more favorable plea bargain of
      uncertain detail. Parker’s counteroffer, however, required the court’s
      involvement in the form of trial continuance of unknown duration so
      that he could provide the information he claimed to have and then the
      prosecutor and police could investigate the usefulness of that
      information, after which the better deal would be negotiated. When the
      continuance was denied, Parker’s two options were clear and
      uncomplicated, albeit grave: trial on the indictment or the guilty pleas
      to an amended count one and count six.

      It was at that point that I wondered aloud to the prosecutor whether, in
      essence, post-plea but presentence cooperation with law enforcement
      might result in better plea bargain. This is the complication that Parker
      now claims confused him.           Still, two things were ultimately
      unmistakably clear: that the change of plea entered on the day of trial
      was not contingent and that there was no guarantee that presentence
      motion to withdraw the guilty pleas would be granted, even if the
      motion was premised on post-plea cooperation by Parker and joined by
      the prosecutor. At various points during the plea hearing, after the
      possibility of post-plea cooperation with the prosecutor was
      mentioned, Parker was told:

      [The plea is] with the possibility but not the guarantee that between
      now and sentencing you might be allowed to withdraw your plea and
      enter a new plea bargain;

      You should consider that if you plead guilty as proposed today you will
      be going to prison for minimum of four years; and

      I cannot guarantee you that such motion [to withdraw today pleas in
      favor of better plea bargain] will be granted.
      So, while it is true that the possibility of, and discussion about, an
      escape hatch from the plea bargain was unusual it was nevertheless
      explicit that the guilty pleas would have full effect unless Parker
      productively cooperated with the prosecution and successfully moved,
      on the basis of the cooperation, to vacate the plea bargain. The pending
      motion to vacate does not fit that description.

               The trial court sentenced Parker to one year in prison for the firearm

specification and ordered that it be served prior to and consecutive to four years on

the base charge of aggravated robbery. The trial court further sentenced Parker to

18 months for having weapons while under disability and ordered that it be served

concurrent to the aggravated robbery charge, for a total of five years in prison. The

trial court also notified Parker that he would be subject to a mandatory five years of

postrelease control and of the consequences that he would face if he violated the

terms of his postrelease control. The trial court also ordered that Parker pay court

costs. It is from this judgment that Parker now appeals.

II. Crim.R. 32.1

               Crim.R. 32.1, which governs motions to withdraw guilty pleas, states:

“A motion to withdraw a plea of guilty or no contest may be made only before

sentence is imposed; but to correct manifest injustice the court after sentence may

set aside the judgment of conviction and permit the defendant to withdraw his or

her guilty plea.”

               The standard of review for a decision on a motion to withdraw a plea

is abuse of discretion. State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992).

An abuse of discretion implies that the court’s attitude is unreasonable, arbitrary, or
unconscionable. State v. Clark, 71 Ohio St.3d 466, 470, 644 N.E.2d 331 (1994). It

involves views or actions “that no conscientious judge, acting intelligently, could

honestly have taken.” State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, 840

N.E.2d 1032, ¶ 129-130.

               In Xie, the Ohio Supreme Court explained the mandates of Crim.R.

32.1 as follows:

      The rule requires a defendant to show that the proceeding during which
      he entered that plea was extraordinarily and fundamentally flawed. [A]
      presentence motion to withdraw a guilty plea should be freely and
      liberally granted. Nevertheless, it must be recognized that a defendant
      does not have an absolute right to withdraw a plea prior to sentencing.
      Therefore, the trial court must conduct a hearing to determine whether
      there is a reasonable and legitimate basis for the withdrawal of the plea.

               This court held in State v. Peterseim, 68 Ohio App.2d 211, 428

N.E.2d 863 (8th Dist.1980), paragraph three of the syllabus, that:

      A trial court does not abuse its discretion in overruling a motion to
      withdraw: (1) where the accused is represented by highly competent
      counsel, (2) where the accused was afforded a full hearing, pursuant to
      Crim.R. 11, before he entered the plea, (3) when, after the motion to
      withdraw is filed, the accused is given a complete and impartial hearing
      on the motion, and (4) where the record reveals that the court gave full
      and fair consideration to the plea withdrawal request.

               A change of heart is not sufficient grounds to allow the withdrawal of

the guilty plea, even in a presentence motion to withdraw the plea. State v. Sylvester,

2d Dist. Montgomery No. 22289, 2008-Ohio-2901, ¶ 19, citing Xie, 62 Ohio St.3d

521, 584 N.E.2d 715; State v. Lambros, 44 Ohio App.3d 102, 103, 541 N.E.2d 632

(8th Dist.1988).
              Applying the Peterseim factors in this case, we conclude that the trial

court did not abuse its discretion when it denied Parker’s motion to withdraw his

plea. Parker was represented by retained counsel. The trial court fully complied

with Crim.R. 11 at the plea hearing where Parker fully understood the nature of the

charges against him and the penalties he faced. The trial court also gave Parker a

full hearing on his motion to withdraw and carefully considered all of Parker’s

arguments.

              When determining if a trial court abused its discretion when denying

a motion to withdraw a plea, other courts also consider, inter alia, “whether the

accused was perhaps not guilty of or had a complete defense to the charge or

charges.” State v. Young, 2d Dist. Greene No. 2003CA89, 2004-Ohio-5794, ¶ 11.

Here, although Parker claimed that he was innocent and that his codefendant

committed the aggravated robbery, the state explained that video surveillance

footage showed — at a minimum — that Parker drove the “get away” car after his

codefendant stole a car from a man at gunpoint. The state further stated that it had

testimonial and video footage that showed that Parker “held up” the other victim (it

is not clear if the other victim was also in the car) at gunpoint. Notably, Parker’s

retained counsel stated that he viewed the video surveillance footage and shared it

with Parker before Parker entered into the plea.

              Parker argues that the state “promised to join in [his] motion to

withdraw his plea if he told them where [his codefendant] could be found and police

went to that place and apprehended [the codefendant.]” Parker claims that he did
what he said he would do and that the state “refused to perform its part of the

agreement.” The state, however, only promised to ask the court to dismiss several

of the charges and specifications if Parker agreed to plead guilty to Count 1 with a

one-year firearm specification and Count 6 as indicted. The state did just that, and

the trial court nolled the remaining charges. The state did not promise Parker a

better plea deal if the information he gave to the detectives did not lead to the

apprehension of his codefendant.

                We further note that the trial court cautioned Parker several times

that there was no guarantee that it would grant his motion to withdraw his plea —

no matter the circumstances. The state also made clear several times that it would

not oppose Parker’s motion to withdraw his plea if Parker’s cooperation actually led

to the apprehension of his codefendant, which although seems to have been no fault

of Parker’s, did not do so. But also, the state told the court that Parker later refused

to give the state a “proffer” regarding his codefendant. Specifically, Parker told the

state and a detective that he would not cooperate with them and “to go about [their]

way.” Therefore, Parker’s claim that “he did all that he could and controlled what

he could control” is not true.

               After reviewing the record in this case, we find no abuse of discretion

on the part of the trial court when it denied Parker’s motion to withdraw his plea

after it found that the motion was not based on a reasonable and legitimate basis.

               Parker’s sole assignment of error is overruled.

               Judgment affirmed.
      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.          The defendant’s

conviction having been affirmed, any bail pending is terminated. Case remanded to

the trial court for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



MARY J. BOYLE, PRESIDING JUDGE

SEAN C. GALLAGHER, J., and
ANITA LASTER MAYS, J., CONCUR
