                                                                                                         FILED
                                                                                               COURT OF APPEAL S_
                                                                                                       DI °VISION IT
                                                                                             2015 MAY 12 AM 8: 41

                                                                                              STA      OF / ASH    ETON
                                                                                              3y




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                   DIVISION II

    STATE OF WASHINGTON,                                                            No. 44572 -7 -II


                                        Respondent,


             v.



    JONATHAN LEVI DUNN,                                                    UNPUBLISHED OPINION


                                        Appellant.


             JOHANSON, C. J. —        Jonathan Levi Dunn appeals his jury trial convictions for two counts

of unlawful possession of a controlled substance with intent to deliver, each with school bus route


stop and firearm sentencing enhancements; two counts of unlawful possession of a controlled

substance; one count of unlawful possession of less than 40 grams of marijuana; and one count of

first degree unlawful possession of a.firearm. He argues that the evidence was insufficient to prove


the firearm sentencing enhancements and that the trial court violated his right to a public trial by

taking peremptory challenges in writing. In a statement of additional grounds for review (SAG), 1

he further argues ( 1) the two firearm sentencing enhancements subjected him to double jeopardy,

    2) the   jury   was .prejudiced   because it   saw   him in   shackles, (   3) the evidence was insufficient to


prove the school bus route stop sentencing enhancements because he had no way of knowing he


1
    RAP 10. 10.
No. 44572 -7 -II



was within a protected zone, and ( 4)        he    received        ineffective   assistance on various grounds.       We


hold that the evidence was sufficient to support the firearm sentencing enhancements and that there

was no public trial violation. We further hold that his SAG issues either have no merit or cannot

be addressed. Accordingly, we affirm.

                                                         FACTS


                                                  I. BACKGROUND


          On August 5, 2012, Longview Police Officers Zachary Ripp and Chris Trevino were on

patrol when      they   observed   Dunn drive      by    and   turn into   an    alley.   Aware that Dunn' s driver' s


license was suspended, the officers followed Dunn, turned on their flashing lights and siren, and

eventually stopped Dunn. The truck stopped approximately 661 feet from a school bus route stop.

         After Dunn got out of his car, the officers arrested him for driving with a suspended license.

During a search of Dunn' s person, Officer Ripp found $3, 940 in cash in one of Dunn' s pockets.

During a subsequent search of Dunn' s truck pursuant to a search warrant, the officers found several

diazepam and alprazolam pills in the truck' s glove box. The officers also found a backpack behind

the   seat and   to the driver' s right.   The backpack was visible and within reach from the driver' s


seat.   Officer Ripp later testified that the backpack was in a location where the driver could have

reached it or grabbed items out of it.


          In the backpack' s main compartment, Officer Ripp found 38. 1 grams of heroin, 27. 1 grams

of methamphetamine, 1. 4 grams of marijuana, a digital scale, and other drug paraphernalia. In the

smaller   front   pouch,   Officer   Ripp found     a   loaded . 380 handgun.         Officer Ripp " rendered it safe"

by removing the loaded magazine            and   the bullet in the     chamber.     Report   of   Proceedings ( RP) ( Jan.


8, 2013) ( Trial) at 58.



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No. 44572 -7 -II



                                                 II. PROCEDURE


         The State charged Dunn with (1) unlawful possession of heroin with intent to deliver (count


I), unlawful possession of methamphetamine with intent to deliver (count II), unlawful possession


of   diazepam ( count III), unlawful    possession of alprazolam ( count           IV), unlawful possession of 40


grams or   less   of marijuana (count   V),   and first degree unlawful possession of a firearm (count VI).2

The State also alleged firearm sentencing enhancements and school bus route stop sentencing

enhancements for counts I and II.


         Dunn     pleaded   not   guilty.   During jury selection, counsel exercised their peremptory

challenges in a sidebar.


         The State' s witnesses testified as described above. Dunn presented an unwitting possession

defense. David Allen Holmes admitted that he owned the items the officers found in the backpack


and testified that Dunn had given hint ride on the day of the arrest and allowed him (Holmes) to

use the backpack because his pockets were full.


         While discussing the unwitting possession defense jury instruction, defense counsel argued

that the instruction applied to the possession with intent to deliver charges because one of the


elements was possession of the controlled substance. The State responded that this was essentially

a request for a lesser included instruction on counts I and II because the possession with intent to


deliver essentially already       required    a mens   rea   for the   possession       element.    Defense counsel


responded    that the unwitting      possession    defense   applied   to   all   the   drug   charges.   But defense


counsel also asserted that even if the jury were to find Dunn knew the drugs were there, there was



2 The State also charged Dunn with third degree driving while license suspended or revoked (count
VII), but that charge was dismissed without prejudice before trial.


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No. 44572 -7 -II



insufficient evidence of intent to distribute. The trial court agreed with the State. Defense counsel


expressly stated he was not requesting a lesser included instruction.

        After the jury reached its verdict, but before the jury delivered the verdict, the trial court

advised the parties that some of the jurors may have inadvertently seen Dunn in shackles because

a bailiff had partially opened the jury room door as Dunn was passing by. The trial court stated

that because the verdict had been reached, it was " not concerned" about this event. RP ( Jan. 10,


2013) at 4.


        The   jury found   Dunn guilty   as charged.       The jury also found that he was armed with a

firearm and within 1, 000 feet of a school bus route stop when he committed counts I and II. The

trial court imposed 72 -month firearm enhancements and 24 -month school bus route stop

enhancements on counts I and II.


        Dunn appeals his convictions and his sentencing enhancements.

                                               ANALYSIS


               I. SUFFICIENCY OF EVIDENCE: FIREARM SENTENCING ENHANCEMENTS


        Dunn first argues that the State failed to present sufficient evidence to establish the two


firearm sentencing   enhancements.       Specifically, he argues that the State failed to prove that the

gun was ( 1) easily and readily accessible or (2) operable. We disagree.

                                     A. STANDARD OF REVIEW


        We review sufficiency of the evidence claims for whether, when viewing the evidence in

the light most favorable to the State, any rational trier of fact could have found the essential

elements of the charged crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201,




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No. 44572 -7 -II



829 P. 2d 1068 ( 1992).            A sufficiency challenge admits the truth of the State' s evidence and all

reasonable inferences drawn from it. Salinas, 119 Wn.2d at 201.

         The trier     of   fact   makes    credibility determinations,          which we will not review.       State v.


Thomas, 150 Wn.2d 821, 874, 83 P. 3d 970 ( 2004).                     And we defer to the trier of fact on issues of


conflicting testimony and the persuasiveness of evidence. Thomas, 150 Wn.2d at 874 -75.

                                B. EASILY ACCESSIBLE AND READILY AVAILABLE


         We first address whether there was sufficient evidence to establish that the firearm was


easily accessible and readily available. We hold that it was.

         A person is armed with a deadly weapon if it is easily accessible and readily available for

use for either offensive or defensive purposes whether to facilitate the crime' s commission, to


escape    the   crime       scene,    to   protect    contraband,     or    to   prevent   investigation,   discovery,   or




apprehension     by the     police.    State   v.   Gurske, 155 Wn.2d 134, 137 -39, 118 P. 3d 333 ( 2005). Mere


proximity or mere constructive possession is insufficient to establish that a defendant was armed

at the time he possessed a controlled substance. 3 Gurske, 155 Wn.2d at 138.

         Dunn relies on Gurske, for the proposition that there was insufficient evidence to find that


he had a firearm that was easily accessible and ready for use. Gurske is distinguishable.

         In Gurske, the defendant            was arrested    for   driving   with a suspended     license. 155 Wn.2d at


136.    In a search incident to arrest, the police found a backpack directly behind the driver' s seat

where    Gurske had been sitting.              Gurske, 155 Wn.2d       at    136.   Inside the zipped backpack police




3
    Additionally, there must be a nexus between the defendant, the crime, and the weapon. Gurske,
155 Wn.2d       at   140 -41.   Dunn does not argue that there was insufficient evidence to establish the
required nexus.



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No. 44572 -7 -II



found      a    Coleman      torch,    a    holstered       handgun   under       the    torch,      and   three   grams   of



methamphetamine. Gurske, 155 Wn.2d at 136. Our Supreme Court held that there was insufficient


evidence to show that the firearm was easily accessible and readily available for use because

Gurske would have had to exit the vehicle or move into the passenger seat to reach the gun.


Gurske, 155 Wn.2d at 143.


        Here, in contrast, Officer Ripp testified that the backpack was in a location where the driver

could have reached it or grabbed items out of it. This testimony, taken in the light most favorable

to the State, would allow a rational jury to find beyond a reasonable doubt that the firearm in the

backpack was easily accessible and readily available to Dunn.

           Citing   State   v.   Ague -Masters, 138 Wn.         App. 86,    104, 156 P. 3d 265 ( 2007), Dunn further


argues that the evidence was insufficient to show the gun was easily accessible and readily

available because the police had arrested him before they found the gun. Dunn' s reliance on Ague -

Masters is misplaced.


           In Ague -Masters, the fact the defendant was already arrested when the law enforcement

officers   found the    gun was not         dispositive.     In fact, we stated that although the proximity of the

defendant to the        gun      may be     a   factor, "   it is possible for a defendant to be armed during a

commission of a crime for purposes of a sentence enhancement even if not arrested in close


proximity to the      weapon."       Ague -Masters, 138 Wn. App. at 103. Furthermore, the dispositive fact

in Ague -Masters was that the officers found the firearms at issue in a locked safe inside the


defendant' s house, where there was no evidence of a drug lab, and the officers did not find any

firearms       or evidence of     firearm   use   inside the   shed where   the   drug   lab   was   located. 138 Wn. App.
No. 44572 -7 -II



at 104 -05. Here, in contrast, the evidence showed that Dunn was near the backpack, the backpack

was accessible to him, and the backpack contained both the gun and the drug evidence.

         We hold that there was sufficient evidence that the gun was easily accessible and readily

available to Dunn.


                                                 C. OPERABLE WEAPON


         Dunn next argues that there was no evidence proving that the firearm was operable because

  t] here   was no    testimony here     the gun ...      could    actually fire     a round."    Br. of Appellant at 10.


We disagree.


         In State v. Recuenco, our Supreme Court acknowledged that to prove a firearm sentencing

enhancement, the State had to " introduce facts upon which the jury could find beyond a reasonable

doubt the      weapon   in   question   falls   under   the definition    of a `   firearm:' ` a weapon or device from


which a projectile      may be fired      by    an explosive such as gunpowder. '            163 Wn.2d 428, 437, 180


P. 3d    1276 ( 2008) (       quoting     11     WASHINGTON         PRACTICE:          WASHINGTON        PATTERN    JURY


INSTRUCTIONS: CRIMINAL 2. 10. 01 (              Supp.   2005)).    The   court also stated, "    We have held that a jury

must be presented with sufficient evidence to find a firearm operable under this definition in order


to   uphold    the   enhancement."      Recuenco, 163 Wn.2d at 437 ( citing State v. Pam, 98 Wn.2d 748,

754 -55, 659 P. 2d 454 ( 1983),         overruled in part on other grounds by State v. Brown, 111 Wn.2d

124, 761 P. 2d 588, 787 P. 2d 906 ( 1988)).             Assuming, but not deciding, that Recuenco requires the

jury to find that a firearm is operable, we hold that the evidence here is sufficient to prove that

element.




            Operability may be inferred without any direct evidence of operability. State v. Mathe, 35

Wn.     App.   572, 581 - 82, 668 P. 2d 599 ( 1983),         aff'd on other grounds, 102 Wn.2d 537, 688 P. 2d


                                                               7
No. 44572 -7 -II



859 ( 1984).      Officer Ripp described the gun as a . 380 handgun and testified that the gun was

loaded, that he had to      unload   the   gun   to "   render[ ]   it   safe,"   and that the gun had a serial number.


RP ( Jan. 8, 2013) ( Trial) at 58. And the gun, magazine, and cartridges were admitted as evidence


and available     to the   jury during   its deliberations.         Taken in the light most favorable to the State,


this was sufficient to show that the firearm was an operable firearm. See Mathe, 35 Wn. App. at

581 -82 ( robbery victims' identifications of the weapon the defendant threatened them with as a

gun was sufficient circumstantial evidence                to   show      it   was a real and operable   firearm); State v.


Bowman, 36 Wn. App. 798, 803, 678 P.2d 1273 ( eyewitness testimony describing a real gun and

recounting the threat to use it was sufficient to establish the existence of a real, operable gun in

fact),   review   denied, 101 Wn.2d 1015 ( 1984).              Accordingly, this argument fails.

                                         II. No PUBLIC TRIAL VIOLATION


          Dunn next argues that the trial court violated his Sixth Amendment to the United States


Constitution and article I, section 22 of the Washington State Constitution guarantees to a public


trial by allowing the parties to exercise their peremptory strikes in writing without first conducting
          Club4
a   Bone -         analysis.   We have previously held in State v. Dunn, 180 Wn. App. 570, 575, 321

P. 3d 1283 ( 2014),    review   denied, 181 Wn.2d 1030 ( 2015),                   and State v. Marks, 184 Wn. App. 782,

789, 339 P. 3d 196 ( 2014),      that exercising peremptory challenges in writing does not implicate a

defendant' s public trial rights. Accordingly this argument fails.

                                                    III. SAG IssuEs


          Dunn also raises several issues in his pro se SAG.




4 State v. Bone -Club, 128 Wn.2d 254, 906 P. 2d 325 ( 1995).

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No. 44572 -7 -II



                                                          A. DOUBLE JEOPARDY


           Dunn first argues that he was subject to double jeopardy because each possession with
intent to deliver included                a   firearm sentencing         enhancement.      We have 'repeatedly rejected this

argument.            In re Pers. Restraint of Delgado, 149 Wn. App. 223, 240, 204 P. 3d 936 ( 2009)

 imposing         multiple     firearm sentencing             enhancements     does    not constitute   double    jeopardy);   State


v.   Nguyen, 134 Wn. App. 863, 866, 142 P. 3d 1117 ( 2006) ( same), review denied, 163 Wn.2d 1053,


cent.   denied, 555 U.S. 1055 ( 2008);               State v. Ward, 125 Wn. App. 243, 251 - 52, 104 P. 3d 670 (2004)

 same),     abrogated in part on other grounds by State v. Grier, 171 Wn.2d 17, 35 -38, 246 P.3d 1260

 2011).     Accordingly, this argument fails.

           Dunn also appears to argue that he was subject to double jeopardy because he was

convicted of          the firearm        enhancements and             first degree   unlawful possession of a       firearm. This


argument also fails.


           The double jeopardy clause of the Fifth Amendment to the United States Constitution

provides      that "[ n] o     person shall ...
                                                         be subject for the same offense to be twice put in jeopardy of

life or limb. "5 The double jeopardy clause bars multiple punishments for the same offense. State

v.    Villanueva -Gonzalez, 180 Wn.2d 975, 980, 329 P. 3d 78 ( 2014).                             We review double jeopardy

claims     de   novo.     Villanueva -Gonzalez, 180 Wn.2d at 979 -80.


                In   order   to be the        same offense      for   purposes of    double   jeopardy[,] the offenses must be

the    same     in law    and      in fact. '    State   v.   Calle, 125 Wn.2d 769, 777, 888 P. 2d 155 ( 1995) ( internal




5
     Article I,      section   9   of   the Washington State Constitution             provides   that "[   n] o person shall ...   be
twice put in          jeopardy, for      the    same offense."        The two clauses provide the same protection. In re
Pers. Restraint of Borrero, 161 Wn.2d 532, 536, 167 P. 3d 1106 ( 2007), cent. denied, 552 U.S.
1154 ( 2008).


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No. 44572 -7 -II



quotation marks omitted) (           quoting State v. Vladovic, 99 Wn.2d 413, 423, 662 P. 2d 853 ( 1983)).

  If there is an element in each offense which is not included in the other, and proof of one offense


would not necessarily also prove the other, the offenses are not constitutionally the same and the

double jeopardy         clause    does   not prevent convictions    for both   offenses. '    Calle, 125 Wn.2d at 777


 quoting Vladovic, 99 Wn.2d at 423).

           Application of these principles makes clear that the firearm enhancements and the crime


of unlawful possession of a firearm are not the same offenses for purposes of the double jeopardy

clause.     In order to convict Dunn of first degree unlawful possession of a firearm, the jury was

required to find that he had knowingly possessed a firearm and that he was previously convicted

or   found   not   guilty   by   reason of   insanity   of a serious offense.    RCW 9. 41. 040( 1)(    a).   In contrast,


the firearm sentencing enhancements required the jury to determine that Dunn had committed the

substantive crimes —unlawful possession of a                 controlled   substance with     intent to deliver —and that


he   was   armed with a           firearm   during   the   commission of    those   offenses.      RCW 9. 94A. 533( 3).


Having been previously convicted or found not guilty by reason of insanity of a serious offense is

not an element of the firearm enhancements, and possession of a controlled substance with intent


to deliver is      not an    element      of unlawful possession of a          firearm.   Accordingly, each offense

contains an element that the other does not, and the first degree unlawful possession of a firearm


charge and the firearm enhancements are not the same in law and in fact; thus, imposing the firearm

enhancements does not amount to double jeopardy. Calle, 125 Wn.2d at 777.

                                                        B. SHACKLES


           Dunn     next argues     that the jury    was prejudiced   because it    saw   him in   shackles. "   The mere


fact that    a
                 jury   sees an   inmate wearing      shackles   does not   mandate reversal."      State v. Rodriguez,



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No. 44572 -7 -II



146 Wn.2d 260, 270 -71, 45 P. 3d 541 ( 2002).                    The defendant must show prejudice, namely that

seeing him in shackles influenced the jury' s verdict. State v. Elmore, 139 Wn.2d 250, 274, 985

P. 2d 289 ( 1999),      cent.   denied, 531 U.S. 837 ( 2000).           The record shows that the incident during

which   the    jury   may have    seen   Dunn in      shackles was after    the   jury   had   reached   its   verdict.   Thus,


this event could have no impact on the verdict and any potential error is clearly harmless.6
         C. SUFFICIENCY OF EVIDENCE FOR THE SCHOOL BUS ROUTE STOP ENHANCEMENTS


         Dunn further argues that he had no knowledge that he was in a school bus route stop zone

and had no way of knowing he was in a school bus route stop zone because school was not in

session.   But a defendant' s actual knowledge of school bus route stops designated by the school

district is irrelevant if information about the location of school bus route stops is available through

objective means, such as contacting the school district' s director of transportation. State v. Becker,

132 Wn. 2d 54, 62, 935 P. 2d 1321 ( 1997) ( citing               State v. Coria, 120 Wn.2d 156, 167, 839 P.2d 890

 1992)). Dunn has not shown that he could not have determined whether he was near a school bus


route   stop    zone   by   contacting the director        of    transportation   or other means.        Accordingly, this

argument also fails.


                                    D. INEFFECTIVE ASSISTANCE OF COUNSEL


         Finally,      Dunn     argues   that he      received    ineffective   assistance     on several      grounds.    This


argument also fails.




6 Dunn may also be arguing that the fact he was shackled every time he was escorted to the
courtroom was prejudicial. But any evidence related to this assertion is outside the record, so we
will not consider       this issue.      State   v.   McFarland, 127 Wn.2d 322, 335, 899 P. 2d 1251 ( 1995)
 appropriate means of raising issues that require evidence or facts from outside the record is to file
a personal restraint petition).

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No. 44572 -7 -II



                                                 1.    STANDARD OF REVIEW


             We     review claims of       ineffective   assistance of counsel     de   novo.    State v. White, 80 Wn.


App. 406,          410, 907 P. 2d 310 ( 1995),        review   denied, 129 Wn.2d 1012 ( 1996). To demonstrate he


received ineffective assistance of counsel, Dunn must show that


              1)   defense     counsel' s representation was       deficient, i. e., it fell below an objective
             standard of reasonableness based on consideration of all the circumstances; and ( 2)
             defense counsel' s deficient representation prejudiced the defendant, i.e., there is a
             reasonable probability that, except for counsel' s unprofessional errors, the result of
             the proceeding would have been different.

State   v.   McFarland, 127 Wn.2d 322, 334 -35, 899 P. 2d 1251 ( 1995). " A failure to establish either

element of          the test   defeats the ineffective    assistance of counsel claim."          In re Pers. Restraint of

Davis, 152 Wn.2d 647, 673, 101 P. 3d 1 ( 2004).

             We     presume     that   counsel' s representation was effective.         Grier, 171 Wn.2d    at   33.   Dunn


can overcome "           the presumption of reasonable performance by demonstrating that ` there is no

conceivable          legitimate tactic explaining          counsel' s   performance. "'        Grier, 171 Wn.2d at 33


 quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101 P. 3d 80 ( 2004)).

                                                2. PHOTOGRAPHIC EVIDENCE


             Dunn argues that he received ineffective assistance of counsel because his counsel failed


to ask for a continuance to allow counsel time to speak to Dunn about certain photographs. Dunn

asserts that these photographs were taken 10 to 15 minutes before the officers pulled him over and


showed another man with a                  backpack getting in        and out of   his truck.    He contends that these


photographs would have assisted with his defense.


             At the start of the trial, defense counsel advised the court that he had received " a number

of photos"         20   minutes prior     from the State. RP ( Jan. 8, 2013)       at   14.   Defense counsel stated that



                                                                 12
No. 44572 -741



these photographs were apparently taken by an Officer Scott McDaniel and that he ( counsel)

wanted to " endorse Officer McDaniel" as a defense witness to authenticate the photographs if he


later chose to admit them after talking to Dunn. RP ( Jan. 8, 2013) at 14.

        The record suggests that defense counsel intended to talk to Dunn about these photographs.


Whether counsel in fact talked to Dunn and what Dunn then told him about these photographs is


outside the record. Additionally, although Dunn attaches copies of photographs to his SAG, they

are not part of   the   official record on appeal.        Because the photographs, information about these


photographs, and whether defense counsel talked to Dunn about the photographs are all outside


the record, we cannot determine if defense counsel should have moved for a continuance and we

decline to further      address      this issue.   McFarland, 127 Wn.2d at 335 ( burden is on the appellant


alleging ineffective assistance of counsel to establish deficient representation based on the record

established in the proceedings below; appropriate means of raising issues that require evidence or

facts from outside the record is to file a personal restraint petition).


                         3. FAILURE TO REQUEST A LESSER INCLUDED INSTRUCTION


        Dunn also appears to assert that his trial counsel should have requested a lesser included


instruction, apparently on the two unlawful possession with intent to deliver charges.

        Whether to request a jury instruction on a lesser included offense is a tactical decision.

Grier, 171 Wn.2d        at   39. "    Thus, assuming that defense counsel has consulted with the client in

pursuing an all or nothing approach, a court should not second -guess that course of action, even

where, by the court' s analysis, the level of risk is excessive and a more conservative approach

would   be   more   prudent."          Grier, 171 Wn.2d      at   39.   The record shows that defense counsel


considered whether to seek a lesser included offense instruction so he could pursue an unwitting


                                                            13
No. 44572 -7 -II



possession defense to counts I and II and that counsel chose not to request the lesser included


instruction because of the lack of evidence of intent to distribute the drugs found in the backpack.


The record does not, however, show whether defense counsel consulted with Dunn about whether


to seek a lesser included offense instruction. But even if we assume defense counsel did not consult


with Dunn, counsel' s all or nothing approach appears reasonable given that his counsel could

choose to tactically defend on the possibility that the State could not prove to the jury the " intent

to deliver" element of the charges. Accordingly, this argument fails.

                                                     4. SENTENCING


         Dunn next argues that his counsel made no argument at sentencing and left it up to the

State to " explain" the sentencing guidelines. But Dunn does not explain what difference it would

have made if his counsel had presented argument at sentencing, and we are not required to search

the   record   for any   possible   issues regarding Dunn'       s   sentencing. RAP 10. 10( c)      (   appellant' s SAG


issues   must advise     the   court of   the   nature and occurrence of    the   alleged errors).       Accordingly, we

do not address this issue further.


                                                5. CHOICE NOT To TESTIFY


         Finally, Dunn states that he chose not to testify because he did not want to be prejudiced

by his history and argues that his counsel did not warn him that if he did not testify it would look

like he was admitting to the crimes. What defense counsel advised or did not advise Dunn about

when he was considering whether to testify is outside the record. Accordingly, we do not address

this issue further.




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No. 44572 -7 -II



        In summary, we hold that the evidence was sufficient to support the firearm sentencing

enhancements and that there was no public trial violation. We further hold that Dunn' s SAG issues


either have no merit or cannot be addressed. Accordingly, we affirm.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040,


it is so ordered.




 We concur:




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