J-S17008-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

LE-JIARON ELMORE

                            Appellant                No. 461 WDA 2015


            Appeal from the Judgment of Sentence February 4, 2015
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0006566-2014


BEFORE: GANTMAN, P.J., SHOGAN, J., and FITZGERALD, J.*

MEMORANDUM BY GANTMAN, P.J.:                        FILED MARCH 18, 2016

        Appellant, Le-Jiaron Elmore, appeals from the judgment of sentence

entered in the Allegheny County Court of Common Pleas, following his guilty

plea to aggravated assault and endangering the welfare of children

(“EWOC”).1 We affirm.

        The relevant facts and procedural history of this case are as follows.

On or around June 20, 2014, the Commonwealth filed a criminal information

charging Appellant with one count each of aggravated assault, EWOC, simple

assault of a child, and recklessly endangering another person, in connection

with an incident involving Appellant’s four-month-old daughter (“Victim”)

____________________________________________


1
    18 Pa.C.S.A. §§ 2702(a)(1); 4304(a)(1), respectively.


_____________________________

*Former Justice specially assigned to the Superior Court.
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that occurred on April 22, 2014.         On November 12, 2014, Appellant pled

guilty to aggravated assault and EWOC in exchange for the Commonwealth’s

agreement to withdraw the remaining charges.          The plea was open as to

sentencing.

      At Appellant’s guilty plea hearing, the Commonwealth summarized the

factual basis for the plea as follows:

         Had the case proceeded to trial…the Commonwealth would
         have called Detective Sellers and Detective Campbell and
         also Children’s Hospital’s Drs. Rachel Berger and Jennifer
         Wolford along with Zone 1 uniformed officers and
         [V]ictim’s mother, …and [V]ictim’s grandmother who would
         have testified that on or about April 22, 2014,
         [V]ictim…was taken first to Allegheny General Hospital by
         her mother for an arm injury. X-rays were taken of this
         four-month-old twin female’s arms and revealed that she
         had a right forearm with a spiral fracture. The x-rays
         further showed three right fractured ribs that were in
         different stages of healing.       The four-month-old was
         transferred to Children’s Hospital where additional x-rays
         and skeletal surveys revealed an additional broken rib to
         the left side and corner fractures to both femurs.

         All parties were interviewed and police learned that
         [V]ictim’s mother had left her four-month-old twins with
         their father, later identified as [Appellant], for a short time
         while she left their home in Pittsburgh. Upon returning[,
         Victim] was crying, a cry that her mother never heard
         before. [Victim’s mother] said [Appellant] was the only
         caregiver. She asked him about the four-month-old. He
         became highly upset and said he didn’t know why she was
         crying. The mother next noticed that the four-month-old
         had a dangling arm and sought medical care.

         The doctors at Children’s Hospital would have testified as
         experts that the abuse happened on more than one
         occasion and that the abuse was caused, it was non-
         accidental. With that, the Commonwealth would have
         rested.

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(N.T. Guilty Plea Hearing, 11/12/14, at 4-6).      The court asked defense

counsel if Appellant had any additions or corrections to the Commonwealth’s

recitation of the facts, to which counsel responded: “None, Your Honor.”

(Id. at 6).    After the court conducted a guilty plea colloquy, it accepted

Appellant’s plea as knowing, intelligent, and voluntary. The court noted for

the record the relevant offense gravity score (“OGS”) and Appellant’s prior

record score (“PRS”). The Commonwealth further indicated Victim’s mother

and Victim’s grandmother were present in court, and Victim’s mother had

written a letter which she asked the Commonwealth to read into the record.

The Commonwealth read the victim impact statement into the record at that

time.    The court deferred sentencing pending a presentence investigation

(“PSI”) report.

        On February 4, 2015, Appellant proceeded to sentencing.   The court

initially noted it had read and considered the PSI report.   The court also

reiterated the OGS for the aggravated assault conviction and Appellant’s

PRS.     Defense counsel emphasized Appellant took responsibility for his

actions by pleading guilty.     Defense counsel also mentioned Appellant’s

mental health issues. Based on Appellant’s PRS of zero and his acceptance

of responsibility, defense counsel requested a mitigated range sentence.

When the court asked Appellant if he wanted to say anything, Appellant

stated: “Just, I’m sorry.”    (N.T. Sentencing Hearing, 2/4/15, at 3).   The

Commonwealth explained Victim’s mother and Victim’s grandmother were

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once again present in court. The Commonwealth reminded the court about

Victim’s mother’s impact statement.         The Commonwealth also discussed

Victim’s injuries.   The Commonwealth further added Appellant had been

investigated for a strikingly similar incident in 2004 involving injuries to a

five-month-old child; the case was closed due, in part, to that mother’s lack

of cooperation and Appellant’s lack of cooperation.       The Commonwealth

sought a high standard range or aggravated range sentence.

      At the conclusion of the hearing, the court sentenced Appellant to

seven (7) to twenty (20) years’ imprisonment for aggravated assault. The

court imposed no further penalty for Appellant’s EWOC conviction.          In

fashioning Appellant’s sentence, the court explained:

         Okay.     [Appellant], I really can’t consider the prior
         investigation since it did not lead to any kind of conviction.
         So we don’t know what there is to know about this.

         However, I am concerned, because this was a four-month-
         old child. A four-month-old child, as you probably know,
         can’t even sit up, let alone defend [herself] or talk.

         Now, she had a fracture to her forearm, three fractured
         ribs, which happened on a prior occasion, which leads me
         to conclude that it wasn’t that you were angry one time
         and just took off on her. She had another broken rib, and
         she had two corner fractures to both of her femurs. This
         shows a long term pattern of abuse by you.

         I certainly feel that you are a danger to any child in our
         community.       I don’t see that you’re amenable to
         rehabilitation.

                                   *    *    *

         I’m   going   to   make   a   recommendation    that   he   be

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         considered for placement at Waymart, which is a mental
         health state correctional institution.

(Id. at 4-5).

      Appellant timely filed post-sentence motions on February 10, 2015,

which the court denied on February 13, 2015. Appellant timely filed a notice

of appeal on March 13, 2015.         On March 25, 2015, the court ordered

Appellant to file by May 22, 2015, a concise statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(b).        Appellant timely filed his

concise statement on May 21, 2015.

      Appellant raises one issue for our review:

         DID THE TRIAL COURT FAIL TO ADEQUATELY CONSIDER
         AND APPLY ALL OF THE RELEVANT SENTENCING
         CRITERIA, INCLUDING [APPELLANT’S] CHARACTER AND
         REHABILITATIVE NEEDS, THE GRAVITY OF THE OFFENSE
         AND THE PROTECTION OF THE PUBLIC, AS REQUIRED
         UNDER    42   PA.C.S.A. §   9721(B)  (SENTENCING
         GENERALLY; GENERAL STANDARDS) AND 42 PA.C.S.A. §
         9725 (TOTAL CONFINEMENT); AND DID IT IMPROPERLY
         CONSIDER A PRIOR INVESTIGATION INTO A SEPARATE
         MATTER?

(Appellant’s Brief at 4).

      Appellant argues the court imposed an excessive sentence due

primarily to the nature of Appellant’s crime. Appellant asserts his sentence

of seven to twenty years’ imprisonment for aggravated assault was

significantly above the sentencing guidelines. Appellant contends the court

failed to discuss the applicable sentencing guidelines at the guilty plea or

sentencing hearings.        Appellant claims the court impermissibly “double


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counted” the seriousness of Appellant’s offense when it deviated from the

sentencing guidelines, because his offense gravity score already accounted

for the seriousness of Appellant’s crime. Appellant avers the court failed to

consider the relevant sentencing factors under 42 Pa.C.S.A. § 9721(b).

Appellant complains the court also ignored the criteria necessary for

imposing a sentence of total confinement set forth at 42 Pa.C.S.A. § 9725.

Appellant   suggests   the   court   discounted   mitigating    factors   such   as

Appellant’s age, his lack of a prior adult record, and the facts that Appellant

suffered from mental health and addiction problems, consistently remained

employed, took responsibility for his crimes by pleading guilty, and showed

remorse.    Appellant objects to the court’s failure to reference the specific

content of the PSI report at the sentencing hearing. Appellant maintains the

court   considered   an   unsubstantiated   allegation   from    2004     involving

Appellant’s conduct with a different child in determining Appellant’s

sentence.    Absent reliance on this unsubstantiated allegation, Appellant

insists the record lacks support for the court’s statement that Appellant was

not amenable to rehabilitation and a danger to children. Appellant concludes

the court abused its sentencing discretion, and this Court must remand for

resentencing.   As presented, Appellant’s claims implicate the discretionary

aspects of sentencing. See, e.g., Commonwealth v. Cartrette, 83 A.3d

1031 (Pa.Super. 2013) (en banc) (explaining claim sentencing court failed to

consider Section 9721(b) factors pertains to discretionary sentencing


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matters); Commonwealth v. Clarke, 70 A.3d 1281 (Pa.Super. 2013),

appeal denied, 624 Pa. 671, 85 A.3d 481 (2014) (stating contention court

focused solely on serious nature of crime without adequately considering

protection of public and defendant’s rehabilitative needs concerns court’s

sentencing    discretion);    Commonwealth     v.     McAfee,    849   A.2d   270

(Pa.Super. 2004), appeal denied, 580 Pa. 695, 860 A.2d 122 (2004)

(explaining   claim   court   considered   improper    factor   upon   sentencing

challenges discretionary aspects of sentencing); Commonwealth v. Cruz-

Centeno, 668 A.2d 536 (Pa.Super. 1995), appeal denied, 544 Pa. 653, 676

A.2d 1195 (1996) (stating allegation court overemphasized seriousness of

crime without considering mitigating factors challenges discretionary aspects

of sentencing).

     A challenge to the discretionary aspects of sentencing is not

automatically reviewable as a matter of right. Commonwealth v. Hunter,

768 A.2d 1136 (Pa.Super. 2001), appeal denied, 568 Pa. 695, 796 A.2d 979

(2001). Prior to reaching the merits of a discretionary sentencing issue:

        We conduct a four-part analysis to determine: (1) whether
        appellant 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
        appellant’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).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal


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denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).

Objections to the discretionary aspects of a sentence are waived if they are

not raised at the sentencing hearing or in a timely filed post-sentence

motion. Commonwealth v. Griffin, 65 A.3d 932 (Pa.Super. 2013), appeal

denied, 621 Pa. 682, 76 A.3d 538 (2013). “This failure cannot be cured by

submitting the challenge in a Rule 1925(b) statement.” McAfee, supra at

275.

       What constitutes a substantial question must be evaluated on a case-

by-case basis. Commonwealth v. Paul, 925 A.2d 825 (Pa.Super. 2007).

A substantial question exists “only when the appellant advances a colorable

argument that the sentencing judge’s actions were either: (1) inconsistent

with a specific provision of the Sentencing Code; or (2) contrary to the

fundamental     norms     which    underlie   the    sentencing    process.”

Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa.Super. 2000) (internal

citation omitted).   In other words, an appellant’s Rule 2119(f) statement

must sufficiently articulate the manner in which the sentence violates either

a specific provision of the sentencing scheme set forth in the Sentencing

Code or a particular fundamental norm underlying the sentencing process.

Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002).

       On appeal, this Court will not disturb the judgment of the sentencing

court absent an abuse of discretion. Commonwealth v. Fullin, 892 A.2d

843 (Pa.Super. 2006).


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        [A]n abuse of discretion is more than a mere error of
        judgment; thus, a sentencing court will not have abused
        its discretion unless the record discloses that the judgment
        exercised was manifestly unreasonable, or the result of
        partiality, prejudice, bias or ill-will. In more expansive
        terms, …: An abuse of discretion may not be found merely
        because an appellate court might have reached a different
        conclusion,     but   requires    a    result   of   manifest
        unreasonableness, or partiality, prejudice, bias, or ill-will,
        or such lack of support so as to be clearly erroneous.

        The rationale behind such broad discretion and the
        concomitantly deferential standard of appellate review is
        that the sentencing court is in the best position to
        determine the proper penalty for a particular offense based
        upon an evaluation of the individual circumstances before
        it. Simply stated, the sentencing court sentences flesh-
        and-blood defendants and the nuances of sentencing
        decisions are difficult to gauge from the cold transcript
        used upon appellate review. Moreover, the sentencing
        court enjoys an institutional advantage to appellate review,
        bringing to its decisions an expertise, experience, and
        judgment that should not be lightly disturbed. Even with
        the advent of the sentencing guidelines, the power of
        sentencing is a function to be performed by the sentencing
        court. Thus, rather than cabin the exercise of a sentencing
        court’s discretion, the guidelines merely inform the
        sentencing decision.

                                 *    *    *

        [W]e reaffirm that the guidelines have no binding effect,
        create no presumption in sentencing, and do not
        predominate over other sentencing factors—they are
        advisory guideposts that are valuable, may provide an
        essential starting point, and that must be respected and
        considered; they recommend, however, rather than
        require a particular sentence. …

Commonwealth v. Walls, 592 Pa. 557, 564-70, 926 A.2d 957, 961-65

(2007) (internal quotation marks, footnotes, and citations omitted).




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         Furthermore, in exercising its discretion, the sentencing
         court may deviate from the guidelines, if necessary, to
         fashion a sentence that takes into account the protection
         of the public, the rehabilitative needs of the defendant,
         and the gravity of the particular offense as it relates to the
         impact on the life of the victim and the community, so long
         as the court also states of record the factual basis and
         specific reasons which compelled the deviation from the
         guidelines. This Court must remand for resentencing with
         instructions if we find that the sentencing court sentenced
         outside the guidelines and the sentence was unreasonable.

Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa.Super. 2001), appeal

denied, 568 Pa. 695, 796 A.2d 979 (2002) (internal citations omitted).

      Pursuant to Section 9721(b), “the 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.” 42 Pa.C.S.A. § 9721(b). See also

42 Pa.C.S.A. § 9725 (stating court shall impose sentence of total

confinement if, having regard to nature and circumstances of crime and

history, character, and condition of defendant, it is of opinion that total

confinement is necessary because: (1) there is undue risk defendant will

commit another crime during period of probation or partial confinement; (2)

defendant   needs   correctional    treatment   that   can   be   provided   most

effectively by commitment to institution; or (3) lesser sentence will

depreciate seriousness of crime).




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      “[T]he court shall make as 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). Nevertheless, “[a] sentencing

court need not undertake a lengthy discourse for its reasons for imposing a

sentence     or   specifically   reference     the   statute[s]   in   question….”

Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa.Super. 2010), appeal

denied, 608 Pa. 661, 13 A.3d 475 (2010). Rather, the record as a whole

must reflect the sentencing court’s consideration of the facts of the case and

the defendant’s character. Id. See also Commonwealth v. Fowler, 893

A.2d 758 (Pa.Super. 2006) (explaining where sentencing court had benefit

of PSI report, we can presume it was aware of relevant information

regarding defendant’s character and weighed those considerations along

with mitigating factors); Cruz-Centeno, supra at 546 (stating: “Having

been fully informed by the pre-sentence report, the sentencing court’s

discretion should not be disturbed”).

      Instantly, Appellant raised the following issue in his Rule 1925(b)

statement:

           The trial court abused its discretion in sentencing
           [Appellant] to seven to 20 years of incarceration at CC#
           2014-06566.       This sentence was manifestly unjust,
           unreasonable and excessive.       The trial court failed to
           adequately consider and apply all of the relevant
           sentencing criteria, including the protection of the public,
           the gravity of the offense, and [Appellant’s] rehabilitative
           needs, as required under 42 Pa.C.S.A. § 9721 (Sentencing
           Generally) and 42 Pa.C.S.A. § 9725 (Total Confinement).
           Specifically, the court did not adequately consider that

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         [Appellant] had a prior record score of zero, took
         responsibility for his crimes, and has severe mental-health
         issues. Moreover, the trial court improperly considered a
         prior investigation into an unrelated matter in determining
         that [Appellant] is not amenable to rehabilitation.

(Appellant’s    Rule   1925(b)   Statement,   filed   May   21,   2015,   at   2).

Significantly, Appellant did not include in his Rule 1925(b) statement his

claims on appeal that the court focused solely on and “double counted” the

seriousness of Appellant’s offense, failed to discuss the sentencing guidelines

at the guilty plea or sentencing hearings, did not reference the specific

content of the PSI report at sentencing, and ignored the mitigating factors of

Appellant’s age, addiction problems, consistent employment, and display of

remorse.       Thus, these claims are waived.         See Commonwealth v.

Schutzues, 54 A.3d 86 (Pa.Super. 2012), appeal denied, 620 Pa. 699, 67

A.3d 796 (2013) (holding defendant waived challenge to discretionary

aspects of sentencing where he failed to preserve claim in Rule 1925(b)

statement).

      Appellant also failed to preserve these complaints in his post-sentence

motion, constituting waiver of these claims on this basis as well.             See

(Appellant’s Post-Sentence Motion, filed February 10, 2015, at 1-4); Griffin,

supra.     Additionally, Appellant’s post-sentence motion omits the claims

raised for the first time in his Rule 1925(b) statement that the court ignored

the sentencing criteria set forth at 42 Pa.C.S.A. § 9725, and considered a

prior investigation involving Appellant to determine he was not amenable to


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rehabilitation.2   Consequently, these averments are likewise waived.3    See

(Appellant’s Post-Sentence Motion at 1-4); Griffin, supra; McAfee, supra.

       Appellant’s remaining averments, preserved in his post-sentence

motion and Rule 1925(b) statement, that the court did not adequately

consider and apply the Section 9721(b) sentencing factors, and imposed a

manifestly excessive above-the-guideline sentence, without consideration of

Appellant’s mental health and rehabilitative needs, lack of a prior record,

and acceptance of responsibility, present substantial questions for review.

See Cartrette, supra (indicating claim court ignored appropriate sentencing

factors under Section 9721(b) raises substantial question); Commonwealth

v. Raven, 97 A.3d 1244 (Pa.Super. 2014), appeal denied, 105 A.3d 736

(2014) (explaining excessive sentence claim, raised in conjunction with

assertion court failed to consider mitigating factors, raises substantial

question).

       In analyzing Appellant’s preserved challenge to the court’s sentencing
____________________________________________


2
 Moreover, the record belies this claim where the trial court expressly stated
at sentencing and in its Rule 1925(a) opinion that it did not consider the
Commonwealth’s statements regarding a prior investigation involving
Appellant. (See N.T. Sentencing Hearing at 4; Trial Court Opinion, filed July
21, 2015, at 3.)
3
   To the extent Appellant complains the court incorrectly stated the
maximum sentence for aggravated assault at the guilty plea hearing,
Appellant raises that claim for the first time on appeal, so it is waived. See
Pa.R.A.P. 302(a) (stating issues not raised before trial court are waived and
cannot be raised for first time on appeal). Notably, Appellant did not seek to
withdraw his guilty plea based on the alleged miscommunication.



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discretion, the trial court reasoned:

         At the sentencing hearing, this [c]ourt noted that it had
         read and considered a Pre-Sentence Investigation report.
         It then placed its reasons for imposing sentence on the
         record:

            THE COURT:        Okay. [Appellant], I really can’t
            consider the prior investigation since it did not lead
            to any kind of conviction. So we don’t know what
            there is to know about this.

            However, I am concerned, because this was a four-
            month-old child. A four-month-old child, as you
            probably know, can’t even sit up, let alone defend
            [herself] or talk.

            Now, she had a fracture to her forearm, three
            fractured ribs, which happened on a prior occasion,
            which leads me to conclude that it wasn’t that you
            were angry one time and just took off on her. She
            had another broken rib, and she had two corner
            fractures to both of her femurs. This shows a long
            term pattern of abuse by you. I certainly feel that
            you are a danger to any child in our community. I
            don’t see that you’re amendable to rehabilitation.

         [(N.T. Sentencing Hearing at 4)].

         As the record reflects, this [c]ourt appropriately read and
         considered     the     pre-sentence    investigation   report,
         considered the factors and severity of the present offense,
         evaluated [Appellant’s] potential for rehabilitation and
         imposed a sentence which took all of these factors into
         consideration.     Contrary to [Appellant’s] assertion, the
         record specifically notes that this [c]ourt did not consider a
         prior child abuse investigation referenced by the
         Commonwealth.         Moreover, the record reflects great
         deliberation and consideration in the formulation of the
         sentence. … Given the facts of this case, the sentence
         imposed was appropriate, not excessive and well within
         this [c]ourt’s discretion. This claim must fail.

(Trial Court Opinion at 3-4). We see no reason to disrupt the court’s broad

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sentencing discretion.   See Walls, supra; Crump, supra; Fullin, supra;

Kenner, supra.

     The record makes clear the court heard the Commonwealth’s recitation

of the facts at the guilty plea hearing, which Appellant did not dispute. The

court also listened to Victim’s mother’s impact statement.         The court

evaluated the arguments of counsel at sentencing, including but not limited

to, defense counsel’s request for a mitigated range sentence based on

Appellant’s PRS of zero and his acceptance of responsibility.    Additionally,

the court had the benefit of a PSI report, so we can presume the court was

aware of relevant information regarding Appellant’s character and weighed

those considerations along with mitigating factors.     See Fowler, supra;

Cruz-Centeno, supra.          The PSI report contained a description of

Appellant’s offenses, victim impact statements, Appellant’s age, criminal

history, employment history, family history, marital history, education, and

physical and mental health information.       The court also recommended

placement for Appellant at a mental health state correction institution,

confirming the court gave thought to Appellant’s mental health issues.

Under these circumstances, we cannot say the sentence imposed was

“unreasonable.”   See Kenner, supra.        Therefore, Appellant’s sentencing

challenge merits no relief.    See Walls, supra; Fullin, supra; Kenner,

supra. Accordingly, we affirm.

     Judgment of sentence affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/18/2016




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