                             2015 IL App (2d) 140485
                                  No. 2-14-0485
                           Opinion filed February 6, 2015
_____________________________________________________________________________

                                            IN THE

                             APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Kane County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 05-CF-2797
                                       )
AUGUSTINE T. MONTES,                   ) Honorable
                                       ) Robert K. Villa,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE JORGENSEN delivered the judgment of the court, with opinion.
       Justices McLaren and Birkett concurred in the judgment and opinion.

                                           OPINION

¶1     Following a jury trial in absentia, defendant, Augustine T. Montes, was convicted of

attempted first-degree murder (720 ILCS 5/8-4(a), 9-1(a) (West 2004)) and aggravated discharge

of a firearm (720 ILCS 5/24-1.2(a)(2) (West 2004)).           He was sentenced to 26 years’

imprisonment for attempted murder and a concurrent 10-year term for aggravated discharge of a

firearm. On direct appeal, we affirmed defendant’s conviction. People v. Montes, 2013 IL App

(2d) 111132.

¶2     Thereafter, defendant, with assistance of counsel, filed a postconviction petition pursuant

to section 122-1 of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 (West 2012)).

Defendant raised claims of actual innocence, based on entrapment, and ineffective assistance of
2015 IL App (2d) 140485


counsel. The trial court summarily dismissed the petition, and defendant appeals. For the

reasons that follow, we affirm.

¶3                                      I. BACKGROUND

¶4     We provide a summary of the trial evidence here; a more detailed recitation of the

evidence may be found in our prior decision. Montes, 2013 IL App (2d) 111132, ¶¶ 1-48.

Further, we again note that defendant was not present at his trial.

¶5     On November 22, 2005, at around 12:30 p.m., Julian Ramos was walking to his

girlfriend’s house in Aurora when he saw four people in a green Pontiac Bonneville pass him.

One person exited the vehicle, and Ramos began to run. At some point, he turned around and

saw someone about 35 to 40 feet away pointing a gun at him. The person wore a black, hooded

sweatshirt and was heavyset (approximately 230 pounds). Ramos saw a gun and then turned

around and heard shots fired. He screamed “I ain’t no King,” and he continued running and

climbed into a truck to hide.

¶6     At the time of the shooting, Blake Pannell was working for the FBI as an informant.

Pannell, who had committed several serious crimes and who was serving as the “enforcer” for

the Aurora Latin Kings street gang, testified that he was with defendant, Quentin Moore, and

Ruben Hernandez on the day of the shooting. Pannell testified that he was wearing a recording

device given to him by the FBI. Moore drove the men in his green Pontiac Bonneville, and they

went to spray paint over graffiti that rival gangs had painted in Latin King territory. According

to Pannell, defendant noticed a man on foot (Ramos) whom he believed to be a member of the

Insane Deuces, a rival gang. The men began plotting how to catch up with the man to shoot him;

Pannell, however, testified that he was not plotting, because he was working with the

government. Moore parked in an alley so that defendant could get out of the car and catch up



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with Ramos. Hernandez gave defendant the gun, and Pannell, Moore, and Hernandez stayed in

the car while defendant exited. When defendant returned to the car, he related that, when Ramos

noticed him coming with his hood up, Ramos got scared and ran off. Defendant said that he

knew exactly where Ramos was heading, and he then instructed Moore on how they could drive

to catch up with him. Defendant wanted to get to a location and park, so that they could ambush

Ramos when he arrived.

¶7     Defendant wiped the gun with a towel, threw it on the backseat, and put the towel over it.

Pannell, sitting on the other side, reached over and, through the towel, pushed a button on the

gun to remove the clip; he dragged the clip out and stuffed it between the seat cushions. Pannell

explained that he did not know if a bullet was still in the gun’s chamber; by removing the clip he

removed any other bullets. He did so because he did not want anyone killed. When they arrived

at the second location, defendant grabbed the gun, put it in his sweatshirt pocket, and exited the

vehicle. Pannell saw defendant stand between two houses until Ramos appeared.

¶8     At that point, Pannell’s cell phone, which was located in the same area as the gun clip,

began to ring. When Pannell reached to pick up his phone, he noticed that Hernandez was

looking back at him. Pannell thought that Hernandez saw the clip, so he grabbed it and said

“[defendant] doesn’t have the clip.” Hernandez told Pannell to go give it to defendant, in case

Ramos had a gun and tried to open fire on defendant. Pannell exited the car while Hernandez

began trying to call defendant to let him know that he did not have the clip. About the same

time, Ramos appeared, and defendant came out and fired at him. Pannell heard the gunshot and

saw defendant fire. Pannell, holding the clip, started running across the street toward defendant,

calling defendant’s name. Ramos was running away, screaming, “I’m not a King, I’m not a




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2015 IL App (2d) 140485


King, I’m not a King.” Pannell met up with defendant and said to him, “you have no clip, you

have no clip,” and they ran back to the car.

¶9     When they got inside the car, defendant said, “I almost had him. I almost had him.”

Hernandez said to defendant, “you better finish this since he’s seen us. You better kill that

person.” They began driving to find Ramos, and defendant was going to “just gun him down.”

As they neared a busy street, they saw that Ramos had stopped traffic and was in the middle of

the street. Because there were several vehicles stopped on a major road, they abandoned their

pursuit of Ramos and left to hide. They went to a friend’s home where they smoked marijuana,

defendant showered, and they waited for time to pass. Later, Pannell was dropped off at another

friend’s house. He called his FBI contact and gave her the recording.

¶ 10   Portions of the recording were played for the jury, and a transcript was provided to the

jury to assist it while listening to the recording. Pannell identified voices on the recording. For

example, at one point someone on the recording, whom Pannell identified as defendant, spotted

Ramos and said “he’s a Dukie,” a derogatory slang word for an Insane Deuce. Pannell identified

a voice that said “Damn, then he’ll see my face” as defendant’s voice. He identified a voice that

said “You want a bandana” as Hernandez’s. He also identified a voice that said “You look like a

bank robber” as his own. Pannell explained that, when defendant got out of the car the second

time, after originally seeing Ramos, he wore over his face a black bandana that Hernandez had

handed to him. Once he put it on, one could see only defendant’s eyes and part of his forehead.

Otherwise, defendant’s face just appeared black. Pannell identified defendant’s voice as saying,

“Take a left. I know exactly how to catch him up ***.” Pannell identified and explained

additional portions of the recording, including when defendant exited the vehicle, the sound of

the gunshot, the sound of his own running as he got back into the car with defendant, and



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2015 IL App (2d) 140485


defendant saying “I had to bump that ‘nigga’ ” (which means kill him), “it was all over for him,”

“I was chasin’, chasing down the block,” and “I kept hearin’ click, click, click.” Pannell

explained that he could be heard yelling defendant’s name (Augustine) and then Hernandez said

“Come on hurry up. Give him the clip, Give him the clip.” Then Pannell opened the door and

started running, yelling “Augustine” as he jumped out of the car. Pannell identified the point in

the recording when they pulled up at their friend’s house and exited the car, the sound of the car

doors, and the sound of defendant’s voice asking if he could take a quick shower. Pannell

testified that he weighed a little less than 135 pounds at the time of the incident. Defendant, in

contrast, was a “much bigger guy.”

¶ 11   The jury returned a verdict of guilty on both counts and signed a special interrogatory,

finding that defendant personally discharged the firearm. The court denied defendant’s posttrial

motions and sentenced him to 26 years’ imprisonment for attempted murder and 10 years’

imprisonment (concurrent) for aggravated discharge of a firearm. We affirmed, holding that: (1)

defendant was sufficiently admonished that trial could proceed in absentia if he did not appear;

(2) sufficient foundation existed to admit the audio recording; (3) the court did not abuse its

discretion in permitting the jury to use a transcript of the recording; and (4) the evidence was

sufficient to establish that defendant shot at Ramos. Montes, 2013 IL App (2d) 111132, ¶¶ 57,

69, 74, 81.

¶ 12   On January 29, 2014, defendant, through counsel, filed his postconviction petition,

raising three issues.   First, defendant raised a claim of actual innocence.     He alleged that

evidence became available after trial that would have supported an entrapment defense.

Specifically, defendant attached an affidavit from Hernandez that essentially alleged that, in

contrast to his trial testimony, Pannell was the driving force behind the shooting. According to



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2015 IL App (2d) 140485


Hernandez’s affidavit, Pannell, working as a government agent and using his influence as gang

“enforcer,” gave defendant a gun and told him to watch for rival gangs.          Hernandez told

defendant that Pannell had said that he thought that defendant had not yet “proved himself” and

that defendant might be beaten or killed. When a man from another gang walked by, Pannell

“gesture[d]” to the group to follow; defendant left the car to pursue the man, but subsequently

returned when the man got away. According to Hernandez, “Pannell does or says nothing to

prevent the situation from escalating[,] but encouraged it.” They came across the individual

again and tried to park to let defendant out of the car. Hernandez turned around and saw

defendant trying to conceal the clip of ammunition in the seat cushions. When defendant

subsequently exited, Pannell noticed that defendant did not take the clip. To avoid raising

Pannell’s suspicions, Hernandez yelled at Pannell to take the clip to defendant. Pannell left the

car with the clip, and a single shot was fired. “I didn’t know if [defendant] fired the shot ***.”

According to Hernandez’s affidavit, Pannell “induced and incited” the incident by possessing a

firearm and putting everyone in a position to commit a crime. “That was Pannell[’s] intention

from the beginning ***.” Pannell placed defendant “in a horrible predicament” where backing

out might have cost him his life. Further, Pannell played his role as enforcer to the “extreme” by

providing guns, participating in crimes, imposing punishment, and “influencing violence.”

Finally, Hernandez attested in the affidavit, “I was unavailable at the time, but I’m available to

testify if needed.”

¶ 13   In addition, defendant attached an affidavit from his trial attorney, Timothy Mahoney,

attesting that it was his understanding that Hernandez faced criminal charges in “several cases”

and was unavailable to be interviewed or called as a defense witness.




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2015 IL App (2d) 140485


¶ 14    Defendant next alleged in his petition that trial counsel was ineffective for not discussing

with him his right to seek a lesser-included-offense jury instruction, specifically on the offense of

reckless discharge of a firearm (as a lesser included offense of aggravated discharge of a

firearm). Defendant alleged that the evidence supported the instruction, since Ramos testified

that he ran for a “good second” before hearing a single gunshot, and Ramos did not know “what

direction the shots were fired at him.” Defendant attached Mahoney’s affidavit attesting that at

no point prior to or during trial did he discuss with defendant the possibility of asking for a

lesser-included-offense jury instruction. Further, to counsel’s knowledge, defendant was not

informed by counsel or the court of his right to seek a jury instruction on a lesser included

offense.

¶ 15    Finally, defendant alleged that trial counsel was ineffective for not seeking on his behalf

a plea deal from the State. 1

¶ 16    On April 29, 2014, the trial court summarily dismissed defendant’s postconviction

petition. Regarding defendant’s actual-innocence claim, the court found that: (1) the affidavits

failed to establish with supporting facts that Hernandez was unavailable such that his testimony

could be considered newly discovered; and (2) the trial evidence, even absent Hernandez’s

testimony, was such that defense counsel could have presented an argument that defendant was

ordered to act by an FBI informant, and therefore Hernandez’s testimony was not new,

noncumulative evidence that was so conclusive that it would probably change the result on

retrial. Regarding defendant’s ineffective-assistance claim premised on the lesser-included-

offense instruction, the court found that it failed because: (1) defendant forfeited the issue by not

raising it on direct appeal; (2) defendant failed to attach his own affidavit asserting that he would

        1
            Defendant abandons this claim on appeal and, therefore, we do not address it further.



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2015 IL App (2d) 140485


have demanded the submission of a lesser-included-offense instruction; and (3) defendant failed

to establish that any error prejudiced him. Defendant appeals.

¶ 17                                      II. ANALYSIS

¶ 18   “In a postconviction proceeding, the trial court does not redetermine a defendant’s

innocence or guilt, but instead examines constitutional issues which have escaped earlier

review.” People v. Jones, 399 Ill. App. 3d 341, 356 (2010). The postconviction setting does not

act as a substitute for or an addendum to a direct appeal. Id. At the first stage (as here) for

adjudicating a postconviction petition, the trial court considers, without input from the State,

whether the petition is “frivolous or is patently without merit.” 725 ILCS 5/122-2.1(a)(2) (West

2012). A claim is frivolous or patently without merit where it has no “arguable basis either in

law or in fact.” People v. Hodges, 234 Ill. 2d 1, 16 (2009). A petition lacking an arguable basis

in law or in fact is one “based on an indisputably meritless legal theory” or a fanciful factual

allegation. Id. Where the petition’s allegations are contradicted by the record or are fantastic or

delusional, the petition should be dismissed. Id. at 16-17. We review de novo the dismissal of a

postconviction petition at the first stage. People v. Brown, 236 Ill. 2d 175, 184 (2010).

¶ 19   Defendant argues first that the trial court erroneously dismissed his actual-innocence

claim, because Hernandez’s affidavit supports an arguable entrapment defense. We disagree.

Defendant has forfeited an entrapment defense. See People v. Fleming, 50 Ill. 2d 141, 144

(1971) (an entrapment defense must be raised at trial or it is forfeited). Further, as discussed

below, the entrapment defense contemplates that a defendant was induced to act by a

government agent; therefore, the defense is unavailable to a defendant who denies committing

the offense. Id. Here, defendant did not list entrapment as a defense in his discovery answers,

nor did he appear at trial to admit to the shooting or to raise the entrapment defense. Trial



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2015 IL App (2d) 140485


counsel did not, in defendant’s absence, raise entrapment as a defense, nor could he without

defendant’s consent, as the defense required defendant to admit to the offense. Defendant has

never raised an ineffective-assistance claim that trial counsel failed to present an entrapment

defense.    On direct appeal, defendant did not raise entrapment, and he has not alleged

ineffectiveness by appellate counsel for failing to raise the claim on direct appeal. Accordingly,

we conclude that defendant’s attempt to raise entrapment for the first time in a postconviction

setting must fail. The entrapment defense is forfeited. See also People v. Davis, 2014 IL

115595, ¶ 13 (in a postconviction setting, issues that were raised and decided on direct appeal are

barred by res judicata, while issues that could have been raised on direct appeal, but were not,

are forfeited).

¶ 20    We could end our analysis there. However, we suspect that defendant would respond that

he could not have raised the entrapment defense at trial, because the evidence supporting that

defense, i.e., Hernandez’s testimony, was unknown and unavailable at the time of trial. It is

purportedly for that reason that defendant seeks postconviction relief, styling his claim as one of

actual innocence based on newly discovered evidence supporting an entrapment defense. For the

following reasons, we conclude that, even if the entrapment defense was not forfeited,

defendant’s postconviction actual-innocence claim was nevertheless properly dismissed as an

indisputably meritless legal theory.

¶ 21    Postconviction petitioners may assert a claim of actual innocence only where the basis of

that claim stems from newly discovered evidence. People v. Ortiz, 235 Ill. 2d 319, 333 (2009).

A court should grant relief only where the petitioner presents supporting evidence that is new,

material, noncumulative, and, critically, of a character so conclusive that it would probably

change the result on retrial. People v. Coleman, 2013 IL 113307, ¶ 84. Further:



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       “New means the evidence was discovered after trial and could not have been discovered

       earlier through the exercise of due diligence. [Citation.] Material means the evidence is

       relevant and probative of the petitioner’s innocence. [Citation.] Noncumulative means

       the evidence adds to what the jury heard.           [Citation.]   And conclusive means the

       evidence, when considered along with the trial evidence, would probably lead to a

       different result. [Citation.]” Id. ¶ 96.

An actual-innocence claim is “extraordinarily difficult to meet,” and courts of review rarely grant

postconviction relief.   Id. ¶ 94 (noting that only three reported cases had granted actual-

innocence postconviction relief since 1996).

¶ 22   Finally, as to entrapment, the Criminal Code of 1961 provides:

              “A person is not guilty of an offense if his or her conduct is incited or induced by a

       public officer or employee, or agent of either, for the purpose of obtaining evidence for

       the prosecution of that person. However, this Section is inapplicable if the person was

       pre-disposed to commit the offense and the public officer or employee, or agent of either,

       merely affords to that person the opportunity or facility for committing an offense.” 720

       ILCS 5/7-12 (West 2004).

Thus, to establish an entrapment defense, a defendant must show both that the State induced him

to commit the crime and that he or she was not already predisposed to commit it. People v.

Placek, 184 Ill. 2d 370, 380-81 (1998).

¶ 23   We first reject defendant’s assertion that the information in Hernandez’s affidavit is new.

Initially, we note that it is not clear that Hernandez’s testimony was unavailable at the time of

trial and could not have been discovered through due diligence. It is true that Hernandez’s

affidavit stated broadly that he was unavailable. However, neither Hernandez’s nor Mahoney’s



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affidavit set forth facts establishing that Hernandez was unavailable. The affidavits did not

assert that Hernandez was a codefendant in this case. Mahoney’s affidavit stated only that he

understood that Hernandez faced charges in “several cases.” It did not state that he tried to

interview Hernandez and that, in fact, Hernandez would not speak with him. Moreover, nowhere

in his affidavit did Hernandez state that, if he had been called to testify at defendant’s trial, he

would have invoked his fifth-amendment rights, thus rendering him unavailable.

¶ 24   In any event, we acknowledge that this is only the first stage of postconviction

proceedings.     Therefore, even if we were to overlook the absence of facts supporting

unavailability and accept that Hernandez was unavailable at the time of defendant’s trial, it

remains that the factual basis for the alleged entrapment defense is not new.

       “Usually, to qualify as new evidence, it is the facts comprising that evidence which must

       be new and undiscovered as of trial, in spite of the exercise of due diligence. Generally,

       evidence is not ‘newly discovered’ when it presents facts already known to the defendant

       at or prior to trial, though the source of those facts may have been unknown, unavailable,

       or uncooperative.” (Emphases added.) People v. Barnslater, 373 Ill. App. 3d 512, 523

       (2007).

Here, we are not presented with a situation where the basis for the affirmative defense remained

undiscovered until after trial. See, e.g., People v. Alberts, 383 Ill. App. 3d 374, 385 (2008)

(postconviction claim of actual innocence based on involuntary intoxication proper where the

law changed subsequent to the defendant’s trial, allowing for the defense to be applied to

unwarned side effects from prescribed medication); see also People v. Hoban, 2014 IL App (1st)

121540-U (actual-innocence claim proper where the defendant learned after his conviction that

he had psychotropic side effects from an allergy medication that he was taking at the time of the



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crime). In contrast, defendant here knew prior to trial the facts that he alleges would support an

entrapment defense, i.e., that Pannell was an informant, that Pannell gave him the gun, that

Pannell encouraged the crime, and that he, defendant, was fearful that he would be beaten or

killed if he did not comply. Defendant focuses solely on the fact that certain evidence from

Hernandez, arguably showing that he was entrapped, was allegedly unavailable, but he ignores

that he could have elected to appear at his own trial to testify to his entrapment defense.

Certainly, a defendant’s failure to take the stand cannot be held against him. However, a

postconviction actual-innocence claim requires new information or evidence discovered after

trial that could not have been discovered earlier through the exercise of due diligence. As

defendant knew the necessary facts prior to trial, the information in Hernandez’s affidavit might

have lent additional support to that claim, but it is not new.

¶ 25   Next, the information in Hernandez’s affidavit is not conclusive such that, when

considered along with the trial evidence, it would probably lead to a different result.         If

introduced at trial, Hernandez’s testimony would have cast doubt on the version of events to

which Pannell testified.     Hernandez’s testimony is not conclusive evidence of defendant’s

innocence; rather, it simply contradicts trial testimony. See People v. Collier, 387 Ill. App. 3d

630, 637 (2008) (noting that evidence that merely contradicts or impeaches a witness is typically

not of such a conclusive nature so as to justify postconviction relief and, moreover, that the

hallmark of actual innocence is a defendant’s total vindication or exoneration). Further, even

with Hernandez’s testimony that Pannell induced defendant to act, the postconviction petition

contained no affidavit or even allegations that would establish the second half of the entrapment

defense, i.e., that defendant, a Latin Kings gang member, was not predisposed to commit the

crime. Finally, it is critical to again note that entrapment is unavailable as a defense where the



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defendant denies committing the offense. Fleming, 50 Ill. 2d at 144. Here, as defendant did not

admit to the crime at trial, his postconviction petition failed to allege or attest that he committed

the shooting, and Hernandez’s affidavit stated only that he did not know if defendant was the

shooter, defendant is precluded from raising entrapment as a defense. Accordingly, as it is

indisputably meritless, the postconviction claim of actual innocence based on entrapment was

properly dismissed.

¶ 26      Defendant challenges next the dismissal of his claim that trial counsel was ineffective for

failing to discuss whether he, defendant, wanted the jury instructed on the lesser included offense

of reckless discharge of a firearm.        At the first stage of postconviction proceedings, an

ineffective-assistance-of-counsel claim may not be dismissed if it is arguable that: (1) counsel’s

performance fell below an objective standard of reasonableness (performance prong); and (2) the

defendant was prejudiced (prejudice prong). Hodges, 234 Ill. 2d at 17 (citing Strickland v.

Washington, 466 U.S. 668, 687-88 (1984)). The performance prong requires us to consider

whether, applying a strong presumption that counsel’s representation fell within the wide range

of reasonable assistance (see Strickland, 466 U.S. at 689), there is an arguable basis to find that

counsel’s performance was “objectively unreasonable under prevailing professional norms.”

(People v. Cathey, 2012 IL 111746, ¶ 23). The prejudice prong requires us to ask whether there

is an arguable basis to conclude that there exists a reasonable probability that, but for counsel’s

errors, the result of the proceeding would have been different. Id. The failure to satisfy either

prong will defeat the ineffective-assistance claim. People v. Williams, 193 Ill. 2d 306, 375

(2000).

¶ 27      Here, defendant correctly notes that only he could decide whether to submit an

instruction on a lesser charge. See People v. Brocksmith, 162 Ill. 2d 224, 229-30 (1994) (it is the



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defendant’s decision, at the close of the evidence, whether to submit an instruction on a lesser

charge). It is for that very reason that defendant’s absence from trial leads us to conclude that

there is no arguable basis to find that counsel’s performance fell below prevailing professional

norms. Counsel is accused of ineffectiveness for failing to discuss with defendant whether to

submit to the jury a lesser-included-offense instruction, but defendant was not present at trial for

counsel to do so. Counsel could not submit a lesser-included-offense instruction without the

opportunity to discuss it with defendant and without defendant’s consent. Id. at 230. Thus, by

absenting himself from trial, defendant precluded counsel from fulfilling the obligation to

discuss with him the availability of a lesser-included-offense instruction.

¶ 28   Further, defendant’s postconviction claim also fails to establish an arguable basis for

concluding that there exists a reasonable probability that, if counsel had discussed with him a

lesser-included-offense instruction, the result of the proceeding would have been different.

Defendant did not allege that, if counsel had done so, defendant would have elected to submit the

instruction. Accordingly, defendant’s postconviction petition was properly dismissed.

¶ 29                                    III. CONCLUSION

¶ 30   For the foregoing reasons, the judgment of the circuit court of Kane County is affirmed.

¶ 31   Affirmed.




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