J-S33044-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA         :   IN THE SUPERIOR COURT OF
                                      :        PENNSYLVANIA
                                      :
              v.                      :
                                      :
                                      :
 RAMON PENA                           :
                                      :
                   Appellant          :   No. 3257 EDA 2019

   Appeal from the Judgment of Sentence Entered September 26, 2019
   In the Court of Common Pleas of Wayne County Criminal Division at
                     No(s): CP-64-CR-0000223-2019

 COMMONWEALTH OF PENNSYLVANIA         :   IN THE SUPERIOR COURT OF
                                      :        PENNSYLVANIA
                                      :
              v.                      :
                                      :
                                      :
 RAMON PENA                           :
                                      :
                   Appellant          :   No. 3258 EDA 2019

   Appeal from the Judgment of Sentence Entered September 26, 2019
   In the Court of Common Pleas of Wayne County Criminal Division at
                     No(s): CP-64-CR-0000433-2018

 COMMONWEALTH OF PENNSYLVANIA         :   IN THE SUPERIOR COURT OF
                                      :        PENNSYLVANIA
                                      :
              v.                      :
                                      :
                                      :
 CARLOS PEREZ                         :
                                      :
                   Appellant          :   No. 3266 EDA 2019

   Appeal from the Judgment of Sentence Entered September 26, 2019
   In the Court of Common Pleas of Wayne County Criminal Division at
                     No(s): CP-64-CR-0000051-2019
J-S33044-20


BEFORE:       DUBOW, J., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                          FILED JULY 27, 2020

         Appellant, Ramon Pena a/k/a Carlos Perez, appeals from the September

26, 2019, judgment of sentence entered in the Court of Common Pleas of

Wayne County following his open guilty plea to one count of retail theft1 at

CP-64-CR-0000433-2018 (“433-2018”), one count of possession of drug

paraphernalia2 at CP-64-CR-0000051-2019 (“51-2019”), and one count of

retail    theft3   at   CP-64-CR-0000223-2019     (“223-2019”).    Additionally,

Appellant’s counsel has filed a petition seeking to withdraw his representation,

as well as a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.

1396 (1967), and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349

(2009) (hereinafter “Anders brief”). After a careful review, we grant counsel’s

petition to withdraw and affirm Appellant’s judgment of sentence.

         The relevant facts and procedural history are as follows: As indicated

supra, Appellant was charged with separate offenses at three lower court

docket numbers. The trial court consolidated the cases, and on August 15,

2019, Appellant entered open guilty pleas to the offenses.

____________________________________________


*   Former Justice specially assigned to the Superior Court.

1   18 Pa.C.S.A. § 3929(a)(1).

2   35 P.S. § 780-113(a)(32).

3   18 Pa.C.S.A. § 3929(a)(1).



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       On September 26, 2019, Appellant proceeded to a sentencing hearing 4

at which the trial court acknowledged it reviewed a presentence investigation

report (“PSI”), as well as all of the attachments to the PSI. N.T., 9/26/19, at

6, 9. Appellant confirmed the accuracy of the PSI and indicated he had no

new information to add to the PSI. Id. at 7-8. The district attorney indicated:

             I’ve read the [PSI], I find it to be full and complete. I would
       note that the individual[] crime[s] for which [Appellant] is being
       sentenced today is [sic], standing alone, are not that serious.
       However, [Appellant] has twenty-one convictions, several of
       which are felony convictions for delivery of drugs, several other
       convictions for theft. [Appellant] has been in this courtroom many
       times over the last five to ten years, many times.               The
       recommendation for [Appellant] to go to the State Penitentiary is
       within the guidelines and he richly deserves that sentence in the
       State Penitentiary.

Id. at 8.

       Appellant’s counsel indicated that Appellant is forty-seven years old and

single, as well as has no children. Id. Counsel noted Appellant has his GED,

and he has worked as a cook. Id. Appellant’s counsel further indicated:

             [Appellant is a] gentlemen [sic] who has struggled with
       addiction for over twenty years, Your Honor. He freely admitted
       that this theft was caused by feeding his addiction. While he’s
       been in jail he has, he has [sic] cooperated with and attended the
       drug and alcohol counseling sessions, he has also participated in
       [B]ible study while in the jail. When he first got to jail, Your Honor,
       he spent ten days in detox for the Heroin in his system. He was
       cooperative with Probation and it is sad, Your Honor, that
       somebody that stole less than a hundred and fifty dollars is going
       to go to prison for a year and a half but as you’ve said, many
____________________________________________


4We note Appellant was represented by counsel, and the trial court provided
an interpreter to assist Appellant, at both the guilty plea and sentencing
hearings.

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J-S33044-20


      time[s] before, we understand that you can’t afford to spit on the
      sidewalk with a record like that.

Id. at 9.

      The trial court asked Appellant if he wished to make a statement, and

Appellant declined. Id. The trial court then stated the following:

             [Appellant], I’ve read every page of the [PSI] and all the
      attachments made to the report. There are twenty-one narrative
      pages, affidavits of probable cause, warrants, restitution claims,
      and the guidelines, sentencing guidelines. Since 1993 you have
      been in and out of various jails. You were under supervision at
      the time that these offenses were committed. Your work history
      is not very good. As [the district attorney] made known, you have
      twenty-one prior convictions. Twenty-one. I found a mistake in
      your [PSI] on page seventeen. It is a minor mistake but under
      the substance abuse history Cocaine/Crack it says you first used
      at age twenty-eight and last used at age twenty-seven, that’s
      obviously not correct. I just wanted you to know I saw that
      mistake. You’ve had lots of opportunities to have drug and alcohol
      treatment at your places of confinement and while you were on
      the street. I am going to follow the recommendation that was
      made to [the trial] [c]ourt with one exception.
             As to Information Number 433-[2018]-Criminal, Count One:
      Retail Theft; It is the Sentence that you, [p]ay the costs of
      prosecution. Undergo incarceration in a State Correctional
      Institution for a period of not less than twelve months nor more
      than sixty months, concurrent to the sentence currently being
      served in Philadelphia County.
            As part of your sentence and as a condition of your parole,
      you shall make restitution in the amount of eighty-seven dollars
      and ninety cents to Walmart. Restitution will be paid within sixty
      days of parole. Payments shall be made to the Wayne County
      Adult Probation Department.
           As to Information Number 51-[2019], Count Two; [p]ay the
      costs of prosecution.        Undergo incarceration in a State
      Correctional Institution for a period of not less than six months
      nor more than twelve months, consecutive to Information Number
      433 of 2018-Criminal.



                                    -4-
J-S33044-20


             As to Information Number 223-2019, Count Three: Retail
       Theft; [p]ay the costs of prosecution. As part of your sentence
       you shall make restitution in the amount of forty-four dollars and
       ninety-four cents to Dave’s Super Duper. Restitution will be paid
       within sixty days of parole to the Wayne County Adult Probation
       Department. I’m sorry I misspoke. Within sixty days of parole in
       Information Numbers 433-2018-Criminal and 51-2019-Criminal.
       Payments shall be made to the Wayne County Adult Probation
       Department. Your total recommended sentence, which I am
       imposing here today, is eighteen months to seventy-two months.
       You have eleven days credit on Information Number 433-2018-
       Criminal. You are RRRI eligible.
                                        ***
             Your sentence is in the aggravated range due to you being
       on parole supervision [for unrelated crimes] at the time of your
       [instant] offense[s]. I did not impose a fine[.]

Id. at 9-12.

       On Monday, October 7, 2019, Appellant filed a timely counseled post-

sentence motion at each lower court docket number,5 and the trial court

denied the post-sentence motion on October 17, 2019. On November 7, 2019,

Appellant filed a separate counseled notice of appeal at each lower court

docket number, and this Court sua sponte consolidated the appeals. All

Pa.R.A.P. 1925 requirements have been sufficiently met.




____________________________________________


5 See Pa.R.Crim.P 720(A)(1) (“[A] written post-sentence motion shall be filed
no later than 10 days after imposition of sentence.”); 1 Pa.C.S.A. § 1908
(“Whenever the last day of any such period shall fall on Saturday or Sunday…,
such day shall be omitted from the computation.”).


                                           -5-
J-S33044-20


      On March 23, 2020, counsel filed in this Court a petition seeking to

withdraw his representation, as well as an Anders brief. Appellant filed no

further submissions either pro se or through privately-retained counsel.

      Prior to addressing any issue raised on appeal, we must first resolve

counsel’s petition to withdraw. Commonwealth v. Goodwin, 928 A.2d 287,

290 (Pa.Super. 2007) (en banc). There are procedural and briefing

requirements imposed upon an attorney who seeks to withdraw on appeal

pursuant to which counsel must:

      1) petition the court for leave to withdraw stating that, after
      making a conscientious examination of the record, counsel has
      determined that the appeal would be frivolous; 2) furnish a copy
      of the brief to the [appellant]; and 3) advise the [appellant] that
      he or she has the right to retain private counsel or raise additional
      arguments that the [appellant] deems worthy of the court’s
      attention.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en

banc) (citation omitted). In addition, our Supreme Court in Santiago stated

that an Anders brief must:

      (1) provide a summary of the procedural history and facts, with
      citations to the record; (2) refer to anything in the record that
      counsel believes arguably supports the appeal; (3) set forth
      counsel’s conclusion that the appeal is frivolous; and (4) state
      counsel’s reasons for concluding that the appeal is frivolous.
      Counsel should articulate the relevant facts of record, controlling
      case law, and/or statutes on point that have led to the conclusion
      that the appeal is frivolous.

Santiago, 602 Pa. at 178-79, 978 A.2d at 361. Counsel also must provide

the appellant with a copy of the Anders brief, together with a letter that

advises the appellant of his or her right to “(1) retain new counsel to pursue

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J-S33044-20


the appeal; (2) proceed pro se on appeal; or (3) raise any points that the

appellant deems worthy of the court’s attention in addition to the points raised

by counsel in the Anders brief.” Commonwealth v. Nischan, 928 A.2d 349,

353 (Pa.Super. 2007) (citation omitted). Substantial compliance with the

Anders requirements is sufficient. See id.

      Herein, counsel contemporaneously filed his petition to withdraw as

counsel and Anders brief. His brief and petition substantially comply with the

technical requirements of Anders and Santiago.          Moreover, counsel has

provided this Court with a copy of the letter, which he sent to Appellant

advising him of his right to retain new counsel, proceed further with his case

pro se, and raise any points that he deems worthy of this Court’s attention.

See Commonwealth v. Millisock, 873 A.2d 748 (Pa.Super. 2005).

Therefore, we proceed to examine the issues counsel identified in the Anders

brief and then conduct “a full examination of all the proceedings, to decide

whether the case is wholly frivolous.” Commonwealth v. Yorgey, 188 A.3d

1190, 1195 (Pa.Super. 2018) (en banc) (quotation omitted).

      Appellant first challenges the discretionary aspects of his sentence.

Specifically, he contends the trial court abused its discretion in failing to set

forth adequate reasons on the record for imposing sentences in the

aggravated range for his offenses at lower court docket numbers 51-2019




                                      -7-
J-S33044-20


(possession of drug paraphernalia) and 433-2018 (retail theft).6       He also

contends these sentences are unduly excessive.7

       When an appellant challenges the discretionary aspects of his sentence,

we must consider his brief on this issue as a petition for permission to appeal.

See Commonwealth v. Moury, 992 A.2d 162 (Pa.Super. 2010). Prior to

reaching the merits of a discretionary sentencing issue,

       [this Court conducts] a four[-]part analysis to determine: (1)
       whether [A]ppellant has filed a timely notice of appeal, see
       Pa.R.A.P. 902 and 903; (2) whether the issue was properly
       preserved at sentencing or in a motion to reconsider and modify
       sentence, see Pa.R.Crim.P. [720]; (3) whether [A]ppellant’s brief
       has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
       substantial question that the sentence appealed from is not
       appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Moury, 992 A.2d at 170 (citation omitted).

       Here, assuming, arguendo, all of these requirements have been met,

we conclude Appellant’s discretionary aspects of sentencing issues are

meritless.

       It is well-settled that:

       Sentencing is a matter vested in the sound discretion of the
       sentencing judge, and a sentence will not be disturbed on appeal
       absent a manifest abuse of discretion. In this context, an abuse
       of discretion is not shown merely by an error in judgment. Rather,
       the appellant must establish, by reference to the record, that the
       sentencing court ignored or misapplied the law, exercised its
____________________________________________


6 As indicated supra, the trial court imposed no prison term for Appellant’s
offense at lower court docket number 223-2019 (retail theft).

7There is no dispute that Appellant’s sentences are not beyond the statutory
maximum.

                                           -8-
J-S33044-20


      judgment for reasons of partiality, prejudice, bias or ill will, or
      arrived at a manifestly unreasonable decision.

Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa.Super. 2015)

(quotation omitted).

      “Although Pennsylvania’s system stands for individualized sentencing,

the court is not required to impose the ‘minimum possible’ confinement.”

Moury, 992 A.2d at 171 (citation omitted). In reviewing the sentence, an

appellate court shall have regard for: (1) the nature and circumstances of the

offense and the history and characteristics of the defendant; (2) the

opportunity of the sentencing court to observe the defendant, including any

presentence investigation; (3) the findings upon which the sentence was

based; and (4) the guidelines promulgated by the commission.             See 42

Pa.C.S.A. § 9781(d)(1)–(4).

      Further, 42 Pa.C.S.A. § 9721(b), pertaining to sentencing generally,

relevantly provides:

      (b) General standards.—[T]he court shall follow the general
      principle that the sentence imposed should call for confinement
      that is consistent with the protection of the public, the gravity of
      the offense as it relates to the impact on the life of the victim and
      on the community, and the rehabilitative needs of the
      defendant....In every case in which the court imposes a sentence
      for a felony or misdemeanor...the court shall make as a part of
      the record, and disclose in open court at the time of sentencing,
      a statement of the reason or reasons for the sentence imposed.

42 Pa.C.S.A. § 9721(b) (bold in original).

      Nevertheless, “[a] sentencing court need not undertake a lengthy

discourse for its reasons for imposing a sentence or specifically reference the

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J-S33044-20


statute in question[.]”   Commonwealth v. Crump, 995 A.2d 1280, 1283

(Pa.Super. 2010). “Rather, the record as a whole must reflect the court’s

reasons and its meaningful consideration of the facts of the crime and the

character of the offender.” Commonwealth v. Malovich, 903 A.2d 1247,

1253 (Pa.Super. 2006) (citation omitted).

      In the case sub judice, the Commonwealth argued that, although

Appellant’s individual offenses, standing alone, were not “serious,” Appellant’s

prior record reveals that he has twenty-one convictions, several of which are

felony convictions. N.T. 9/26/19, at 8. The Commonwealth suggested that

Appellant has been given “many chances,” and he now “richly deserves” a

lengthy sentence in a state correctional institution. Id.

      Appellant’s counsel, on the other hand, argued for leniency noting that

Appellant has struggled with addiction for over twenty years, and his need to

“feed the addiction” is the reason for his instant offenses. Id. at 9. Appellant’s

counsel noted that, while Appellant was in prison, he participated in Bible

study and drug/alcohol counseling sessions. Id.

      As indicated supra, the trial court specifically indicated it reviewed the

PSI, as well as the numerous attachments, including the applicable sentencing

guidelines. Moury, 992 A.2d at 171 (“Where the sentencing court had the

benefit of a [PSI], we can assume the sentencing court was aware of relevant

information   regarding   the   defendant’s   character     and   weighed   those

considerations along with mitigating statutory factors.”) (quotation marks and


                                     - 10 -
J-S33044-20


quotations omitted)). Further, in imposing the aggravated range sentences,

the trial court specifically noted Appellant has been “in and out of jail” since

1993, his work history is “not very good,” and he was under supervision for

unrelated offenses when he committed his present offenses. N.T. 9/26/19, at

10.   The trial court concluded Appellant had “lots of opportunities” for

drug/alcohol treatment, but as Appellant’s counsel noted, Appellant continued

to use illegal substances. Id.    The trial court reasoned that these factors,

including the fact Appellant has twenty-one prior convictions, necessitated

aggravated range sentences for lower court docket numbers 51-2019 and

433-2018.     We find no abuse of discretion and conclude Appellant’s

discretionary aspects of sentencing issues are meritless. See Crump, supra;

Malovich, supra.

      In his next issue, Appellant contends the trial court erred in failing to

give him credit for the 78 days he spent in prison with regard to his offense

docketed at 223-2019.

      A claim asserting the trial court failed to award credit for time served

implicates the legality of the sentence. Commonwealth v. Johnson, 967

A.2d 1001, 1003 (Pa.Super. 2009).         Issues relating to the legality of a

sentence are questions of law. Commonwealth v. Aikens, 139 A.3d 244,

245 (Pa.Super. 2016). Our standard of review over such questions is de novo

and the scope of review is plenary. Id.

      The relevant statutory authority provides the following:


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J-S33044-20


      § 9760. Credit for time served.
      After reviewing the information submitted under section 9737
      (relating to report of outstanding charges and sentences) the
      court shall give credit as follows:
      (1) Credit against the maximum term and any minimum term shall
      be given to the defendant for all time spent in custody as a result
      of the criminal charge for which a prison sentence is imposed or
      as a result of the conduct on which such a charge is based. Credit
      shall include credit for time spent in custody prior to trial, during
      trial, pending sentence, and pending the resolution of an appeal.
      (2) Credit against the maximum term and any minimum term shall
      be given to the defendant for all time spent in custody under a
      prior sentence if he is later reprosecuted and resentenced for the
      same offense or for another offense based on the same act or
      acts. This shall include credit in accordance with paragraph (1) of
      this section for all time spent in custody as a result of both the
      original charge and any subsequent charge for the same offense
      or for another offense based on the same act or acts.
      (3) If the defendant is serving multiple sentences, and if one of
      the sentences is set aside as the result of direct or collateral
      attack, credit against the maximum and any minimum term of the
      remaining sentences shall be given for all time served in relation
      to the sentence set aside since the commission of the offenses on
      which the sentences were based.
      (4) If the defendant is arrested on one charge and later
      prosecuted on another charge growing out of an act or acts that
      occurred prior to his arrest, credit against the maximum term and
      any minimum term of any sentence resulting from such
      prosecution shall be given for all time spent in custody under the
      former charge that has not been credited against another
      sentence.

42 Pa.C.S.A. § 9760 (bold in original).

      Here, in applying Section 9760, and concluding Appellant was not

entitled to an additional 78 days of credit for time served, the trial court

relevantly indicated the following:




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            “A defendant shall be given credit for any days spent in
      custody prior to the imposition of sentence, but only if such
      commitment is on the offense for which sentence is imposed.
      Credit is not given, however, for a commitment by reason of a
      separate and distinct offense.” Commonwealth v. Clark, 885
      A.2d 1030, 1034 (Pa.Super. 2005). See also Commonwealth
      v. Infante, 63 A.3d 358, 367 (Pa.Super. 2013).
            In the instant matter, Appellant was first arrested for
      [offenses docketed at] 433-2018-CR on October 20, 2018.
      Appellant spent eleven (11) days in the Wayne County
      Correctional Facility until he was released on bail on November 2,
      2018. On February 20, 2019, Appellant was charged with 51-
      2019-CR while still on bail for 433-2018-CR. Appellant was not
      held on this case prior to sentencing. On July 10, 2019, Appellant
      was arrested for the third case, 223-2019-CR. Appellant was
      unable to post bail for this matter and remained in custody until
      his sentencing date on September 26, 2019[,] for a total of
      seventy-eight (78) days.
             When Appellant was sentenced on September 26, 2019, he
      received a sentence of incarceration of 12-60 months in a state
      correctional institution with eleven (11) days [of credit for] time
      served pertaining to 433-2018-CR.         Regarding 51-2019-CR,
      Appellant received a sentence of 6-12 months in a state
      correctional institution. [Since he was not held in prison with
      regard to 51-2019-CR, there was no credit for time served with
      regard thereto]. Regarding 223-2019-CR, Appellant did not
      receive a sentence involving incarceration[; but rather, the trial
      court directed Appellant to pay costs and restitution.] Appellant
      was given the correct amount of [credit for] time served regarding
      433-2018. Because Appellant did not receive a sentence of
      incarceration for 223-2019-CR, the seventy-eight (78) days spent
      in custody cannot be applied to his sentence for [either] 433-
      2018-CR [or] 51-2019-CR pursuant to well established case law
      in [this] Commonwealth. See Clark, [supra].

Trial Court Opinion, filed 1/7/20, at 4-5.

      We agree with the trial court’s sound reasoning. Appellant did not

receive a sentence of imprisonment with regard to his offense at 223-2019,

so he now seeks to have the 78 days of time he served in prison awaiting trial


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with regard to 223-2019 credited to his prison sentence for his offenses at

either 433-2018 or 51-2019.           However, “[n]o language in [Section] 9760

provides, or even suggests, that an individual is entitled to credit for time

served for periods of incarceration on offenses…wholly unrelated to the current

charges.” Commonwealth v. Saunders, 226 A.3d 1019, 1023 (Pa.Super.

2020) (quotation marks and quotation omitted)). Rather, this Court has

specifically recognized that “a defendant shall be given credit for any days

spent in custody prior to the imposition of sentence, but only if such

commitment is on the offense for which sentence is imposed. Credit is not

given, however, for a commitment by reason of a separate and distinct

offense.” Clark, 885 A.2d at 1034 (citing Commonwealth v. Miller, 655

A.2d 1000, 1002 (Pa.Super. 1995)).8                Accordingly, we find no merit to

Appellant’s final claim.

____________________________________________


8 Miller involved a defendant who was arrested and charged with delivery of
a controlled substance, and he subsequently posted bail and was released
from custody. Nearly four months later, during the pendency of the initial
charge, Miller was arrested separately on an unrelated charge of aggravated
assault. Shortly thereafter, Miller was charged separately with robbery
associated with the same incident that had prompted the aggravated assault
charge. He remained incarcerated for several months on the latter two
charges, but ultimately was acquitted on those charges. During the pendency
of those charges, Miller pleaded guilty to the delivery of a controlled substance
charge, and sentencing had been deferred. Ultimately, over a month after his
acquittal and release on the aggravated assault and robbery charges, Miller
was sentenced to confinement for the delivery of a controlled substance
charge. Miller, 655 A.2d at 1001. Miller sought credit for all time served on
the aggravated assault and robbery charges prior to his sentencing on the
delivery of a controlled substance charge. However, the trial court gave him



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       After examining the issues contained in the Anders brief, we agree with

counsel that the appeal is wholly frivolous. “Furthermore, after conducting a

full examination of all the proceedings as required pursuant to Anders, we

discern no non-frivolous issues to be raised on appeal.” Yorgey, 188 A.3d at

1195. Thus, we grant counsel’s petition to withdraw and affirm Appellant’s

judgment of sentence.

       Petition to withdraw as counsel granted.         Judgment of sentence

affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/27/20




____________________________________________


credit only for the days that he served on the delivery of a controlled substance
charge between his arrest on that charge and when he posted bail. On appeal,
Miller argued that Section 9760(4) required that he be granted credit for the
time he was detained on the aggravated assault and robbery convictions of
which he ultimately was exonerated. The Miller court disagreed, concluding
that Section 9760(4) was inapplicable and “[c]redit is not given…for a
commitment by reason of a separate and distinct offense.” Id. at 1002-03.



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