People v. Young , 425 Ill. Dec. 639 ( 2018 )

2018 IL 122598
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 122598)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
NELSON YOUNG, Appellant.
Opinion filed September 20, 2018.
JUSTICE NEVILLE delivered the judgment of the court, with opinion.
Chief Justice Karmeier and Justices Thomas, Kilbride, Garman, Burke, and
Theis concurred in the judgment and opinion.
OPINION
¶1 Defendant, Nelson Young, was convicted of first degree murder (720 ILCS
5/9-1(a)(2) (West 2004)). The circuit court of Morgan County sentenced him to
serve a term of 40 years in prison, with 215 days of presentence custody credit, and
also imposed certain fines and fees. Defendant subsequently filed a successive
postconviction petition, which was dismissed on the State’s motion. On appeal,
defendant argued, inter alia, that the circuit court erred in failing to award him the
correct amount of presentence custody credit as required by statute.
¶2 The appellate court declined to address defendant’s claim for additional
presentence custody credit. 2017 IL App (4th) 150575-U. This court allowed
defendant’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. July 1, 2017).
¶3 I. BACKGROUND
¶4 In July 2005, defendant was charged with first degree murder (720 ILCS
5/9-1(a)(2) (West 2004)) for the stabbing death of his girlfriend, Eva Marie Davis.
After undergoing a fitness examination, defendant was found unfit to stand trial in
December 2005. He was temporarily transferred to the Department of Human
Services for treatment and, following a second fitness hearing, was found fit for
trial in March 2006. Defendant was tried and convicted by a jury, and the circuit
court sentenced him to serve 40 years in prison, with 215 days of presentence
custody credit. The court also ordered him to pay court costs and a DNA analysis
fee. Sometime thereafter, the clerk of the circuit court recorded additional fines
against defendant that had not been imposed by the circuit court as part of his
sentence.
¶5 On direct appeal, defendant argued that the circuit court erred in admitting
other-crimes evidence. The appellate court rejected that claim and affirmed his
conviction and sentence. People v. Young, 381 Ill. App. 3d 595 (2008).
¶6 In April 2009, defendant, pro se, filed a petition for postconviction relief under
the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2008)), asserting
that his trial counsel was ineffective based on his counsel’s trial strategy, including
decisions regarding the presentation of or objection to evidence and the failure to
pursue defenses other than accident. The circuit court dismissed the petition as
frivolous and patently without merit. See id. § 122-2.1(a)(2). That judgment was
affirmed on appeal. People v. Young, No. 4-09-0486 (2011) (unpublished order
under Illinois Supreme Court Rule 23).
¶7 In October 2014, defendant pro se filed a petition seeking postjudgment relief
under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West
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2014)). In that petition, defendant alleged that his trial counsel was ineffective for
failing to advise the circuit court of certain facts showing that he was unfit to stand
trial. Defendant further asserted that his right to due process had been violated
because he was unfit at the time of trial. As relief, defendant requested the court to
order a psychological evaluation to determine whether he was fit at the time of trial.
¶8 The circuit court recharacterized the petition as a successive postconviction
petition and advanced it to second-stage proceedings. 1 The court ultimately granted
the State’s motion to dismiss. Defendant sought reconsideration, contending,
inter alia, that the circuit court erred by recharacterizing his petition as a successive
postconviction petition without notifying him. In addition, defendant requested that
the court vacate the dismissal and appoint counsel to represent him at the
second-stage proceedings. The circuit court denied defendant’s request for
reconsideration.
¶9 On appeal, defendant raised three issues. First, he argued that the circuit court
erred by recharacterizing his petition for relief from judgment as a successive
postconviction petition without first admonishing him in accordance with People v.
Pearson, 216 Ill. 2d 58 (2005). Second, he requested that the appellate court vacate
certain fines recorded against him by the circuit clerk because they had not been
imposed by the court as part of his sentence. Third, defendant asserted that the
circuit court erred in calculating the amount of presentence custody credit to which
he was entitled under section 5-4.5-100 of the Unified Code of Corrections (730
ILCS 5/5-4.5-100 (West 2014)). With regard to this contention, defendant
requested that the appellate court grant him 183 days of additional credit based on
the amount of time he was held in custody prior to the imposition of his sentence.
¶ 10 The appellate court agreed with defendant on the first two issues. Accordingly,
the appellate court vacated the dismissal of his successive postconviction petition
and remanded the case for proper admonishments in compliance with Pearson.
2017 IL App (4th) 150575-U, ¶¶ 34-38. The appellate court also vacated three fines
that were recorded against defendant by the circuit clerk but were not included as
part of the circuit court’s judgment. Id. ¶ 46. With regard to defendant’s request for
1
Although the petition was advanced to second-stage proceedings, the circuit court did
not appoint counsel to represent defendant.
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additional presentence custody credit, the appellate court concluded that it lacked
jurisdiction to consider the issue because it determined that such a claim cannot be
raised for the first time on appeal from postconviction proceedings. As a result, the
appellate court declined to address the merits of defendant’s claim. Id. ¶¶ 42-44.
¶ 11 Defendant appeals to this court. Additional pertinent facts will be discussed in
the context of the issues raised on appeal.
¶ 12 II. ANALYSIS
¶ 13 The central issue in this appeal is whether defendant’s claim for presentence
custody credit under section 5-4.5-100 of the Unified Code of Corrections (730
ILCS 5/5-4.5-100 (West 2014)) is procedurally defaulted because it was asserted
for the first time on appeal from postconviction proceedings. The determination of
whether a claim is procedurally barred presents a question of law subject to de novo
review. People v. Thompson, 2015 IL 118151, ¶ 25. In addition, our resolution of
this issue requires statutory construction, which also presents a question of law that
we review de novo. See People v. Manning, 2018 IL 122081, ¶ 16.
¶ 14 As an initial matter, we address the appellate court’s assessment of its
jurisdiction to address defendant’s claim for presentence custody credit. See
Thompson, 2015 IL 118151, ¶ 26 (noting that a court of review has an independent
duty to consider jurisdiction). The appellate court refused to consider the
custody-credit claim, stating that it “lack[ed] jurisdiction” to do so. 2017 IL App
(4th) 150575-U, ¶ 43. That determination was mistaken. The appellate court
obtained jurisdiction in this matter when defendant timely filed a notice of appeal
from the dismissal of his successive postconviction petition. See Thompson, 2015
IL 118151, ¶ 26. Although the appellate court’s statement regarding its jurisdiction
was inaccurate, the court ultimately determined that defendant’s request for
presentence custody credit was not properly presented because such a claim could
not be raised for the first time on appeal from postconviction proceedings. 2017 IL
App (4th) 150575-U, ¶ 44. We, therefore, address the parties’ arguments as to the
propriety of that conclusion.
¶ 15 Defendant argues that the appellate court erred in refusing to grant him an
additional 183 days of presentence custody credit based on his failure to assert that
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claim in prior proceedings. The State responds that the appellate court properly
declined to address the sentence-credit claim because it had been forfeited. 2
¶ 16 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West
2014)) provides a remedy to criminal defendants who claim that substantial
violations of their federal or state constitutional rights occurred in the prosecutions
that resulted in their convictions. A postconviction proceeding is a collateral attack,
not an appeal seeking review of the judgment. The purpose of a postconviction
action is to permit inquiry into constitutional issues involved in the original trial
that have not been, and could not have been, adjudicated previously upon direct
review. Issues that were raised and decided on direct review are barred by the
doctrine of res judicata, and issues that could have been presented on direct review,
but were not, are procedurally defaulted. People v. Taylor, 237 Ill. 2d 356, 371-72
(2010). Also, any claim that is not included in the original or an amended petition is
forfeited. 725 ILCS 5/122-3 (West 2014); People v. Pendleton, 223 Ill. 2d 458, 475
(2006); People v. Jones, 211 Ill. 2d 140, 144-45 (2004). However, a forfeited claim
may be raised in a successive postconviction petition if the defendant can satisfy
the cause-and-prejudice test. 725 ILCS 5/122-1(f) (West 2014); Pendleton, 223 Ill.
2d at 476; Jones, 211 Ill. 2d at 148-49.
¶ 17 In this case, it is uncontroverted that defendant’s claim for additional
presentence custody credit under section 5-4.5-100 has been forfeited. Defendant
did not object to the presentence-credit calculation at the time of sentencing, in his
initial posttrial motion, in his amended posttrial motion, or in the motion seeking a
reduction of his sentence. The issue was not raised on direct appeal as plain error or
as the basis for a claim of ineffective assistance of trial counsel, nor was it
presented in a timely filed section 2-1401 petition. Defendant’s initial
2
Throughout its brief, the State refers to defendant’s petition as seeking relief under
section 2-1401, as it was labeled and initially presented in the circuit court. However, the
appellate court concluded that the trial court had recharacterized that document as a
successive postconviction petition and remanded for the necessary Pearson
admonishments, which would not be required or appropriate for a section 2-1401 petition.
The State has not argued that the appellate court erred in its recharacterization
determination or that the remand was improper. Accordingly, we address the issues
presented here under the law governing postconviction proceedings.
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postconviction petition did not assert the claim or allege that appellate counsel was
ineffective for failing to present it on direct appeal. Finally, defendant did not
include the claim in his successive petition, which is the subject of this appeal.
¶ 18 Defendant does not dispute that his custody-credit claim could have been raised
in those proceedings. He argues, however, that his failure to assert the claim earlier
is of no moment because a claim for presentence custody credit is immune to the
rules of procedural default. In particular, defendant claims that the applicable
statutory language and relevant Illinois jurisprudence permits the assertion of his
claim on appeal from the dismissal of his successive postconviction petition.
¶ 19 In addressing defendant’s argument, we must construe the language codified in
the presentence custody credit statute (730 ILCS 5/5-4.5-100 (West 2014). The
primary objective in construing a statute is to ascertain and give effect to the intent
of the legislature. The most reliable indicator of legislative intent is the language of
the statute, given its plain and ordinary meaning. A court must view the statute as a
whole, construing words and phrases in light of other relevant statutory provisions
and not in isolation. Each word, clause, and sentence of a statute must be given a
reasonable meaning, if possible, and should not be rendered superfluous. In
general, courts will not depart from the statute’s plain language by reading into it
exceptions, limitations, or conditions the legislature did not express. People v.
Casas, 2017 IL 120797, ¶ 18.
¶ 20 Section 5-4.5-100(b) of the Unified Code of Corrections provides, in pertinent
part, as follows:
“the offender shall be given credit on the determinate sentence or maximum
term and the minimum period of imprisonment for the number of days spent in
custody as a result of the offense for which the sentence was imposed. *** The
trial court may give credit to the defendant for the number of days spent
confined for psychiatric or substance abuse treatment prior to judgment, if the
court finds that the detention or confinement was custodial.” 730 ILCS
5/5-4.5-100(b) (West 2014). 3
3
At the time defendant was sentenced in 2006, presentence custody credit was
governed by section 5-8-7 of the Unified Code of Corrections (730 ILCS 5/5-8-7(b) (West
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¶ 21 Defendant argues that, because section 5-4.5-100 provides that the grant of
credit is mandatory and does not include any limitation restricting when credit
requests may be asserted, claims for sentence credit under that provision are not
subject to forfeiture. According to defendant, claims for presentence custody credit
must be treated in the same manner as claims for per diem monetary credit under
section 110-14 of the Code of Criminal Procedure of 1963 (725 ILCS 5/110-14
(West 2014)). In support of this argument, defendant relies on People v. Woodard,
175 Ill. 2d 435 (1997), and People v. Caballero, 228 Ill. 2d 79 (2008).
¶ 22 Both Woodard and Caballero addressed the viability of claims for per diem
monetary credit that were raised for the first time on appeal. Woodard did so in the
context of a direct appeal (Woodard, 175 Ill. 2d at 438), and Caballero did so in the
context of an appeal from postconviction proceedings (Caballero, 228 Ill. 2d at 81).
In resolving each case, the court examined the language of section 110-14. Id. at 83;
Woodard, 175 Ill. 2d at 440, 444. The per diem monetary credit statute provides, in
pertinent part, that a person incarcerated on a bailable offense “shall be allowed a
credit of $5 for each day so incarcerated upon application of the defendant.” 725
ILCS 5/110-14(a) (West 2016).
¶ 23 In Woodard, the court noted that the right to monetary credit is mandatory and
shall be granted “upon application” for it. Woodard, 175 Ill. 2d at 444. In addition,
the court also noted that the statute imposes no limitation restricting the time frame
during which the application must be made. Id. The Woodard court held that, under
the plain language of section 110-14, “the statutory right to a per diem credit is
conferred in mandatory terms while being subject to a defendant’s application. As
such, the ‘normal rules’ of waiver do not apply [citation], and the right is
cognizable on appeal as a matter of course subject to a defendant’s application for
it.” Id. at 457. Lastly, after concluding that the statutory language permitted the
defendant to initially request per diem credit on appeal, the court observed that “the
mandatory credit in section 5-8-7(b) *** has been treated similarly” by the
appellate court. Id.
2006)). That section was repealed in 2009 and replaced by section 5-4.5-100. No relevant
changes were made to the language or substance of the provisions.
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¶ 24 In Caballero, the court initially found that a claim for the per diem monetary
credit under section 110-14 is a statutory right that is not cognizable under the Act.
Caballero, 228 Ill. 2d at 87. The court went on to explain that the defendant’s credit
request did not allege a violation of a constitutional right but was, instead, merely
an application for a different type of statutory relief. Id. at 87-88. The court also
noted that section 110-14 lacked a specified time frame or procedural stage for a
defendant to make such an application and that the grant of such credit was a
“ ‘ “simple ministerial act” ’ ” that would promote judicial economy by precluding
further proceedings on that matter. Id. (quoting Woodard, 175 Ill. 2d at 456,
quoting People v. Scott, 277 Ill. App. 3d 565, 566 (1996)). The court then held that
“if, as in this case, the basis for granting the application of the defendant is clear and
available from the record, the appellate court may, in the ‘interests of an orderly
administration of justice,’ grant the relief requested.” Id. at 88. The Caballero court
also acknowledged Woodard’s general observation that the appellate court had
treated presentence custody credit and monetary per diem credit similarly. Id. at 84
(citing Woodard, 175 Ill. 2d at 457).
¶ 25 In asserting that his custody-credit claim is not subject to procedural default,
defendant points out that in cases decided after Caballero the appellate court has
not been consistent in granting claims for presentence custody credit under section
5-4.5-100 that are raised for the first time on appeal. See People v. Truesdell, 2017
IL App (3d) 150383, ¶ 19 (granting credit on appeal from postconviction
proceedings); People v. Ross, 2015 IL App (3d) 130077, ¶¶ 22-23 (same); People v.
Purcell, 2013 IL App (2d) 110810, ¶¶ 8-9, 18 (same); People v. Harper, 387 Ill.
App. 3d 240, 244 (2008) (same). But see 2017 IL App (4th) 150575-U, ¶ 44
(refusing to grant credit); People v. Morrison, 2016 IL App (4th) 140712, ¶ 19-21
(same); People v. Nelson, 2016 IL App (4th) 140168, ¶ 39 (same). Defendant
asserts that this divergence in our appellate court must be resolved in favor of
allowing such claims to be presented in the appellate court even where they were
not raised in prior proceedings. According to defendant, all of the factors that
animated the decisions in Caballero and Woodard are present in this case and,
therefore, the same result should obtain here. We do not agree.
¶ 26 In both Caballero and Woodard, the conclusion that a per diem credit claim
could be asserted for the first time on appeal was specifically predicated on the fact
that section 110-14 provided that the mandatory per diem credit is to be granted
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“upon application of the defendant” without any specified time limitation for that
application. Caballero, 228 Ill. 2d at 83, 87-88; Woodard, 175 Ill. 2d at 444, 457. In
contrast, section 5-4.5-100 does not provide that presentence custody credit is to be
granted “upon application of the defendant,” nor does it contain any other language
indicating that the normal rules of procedural default do not apply to claims for
such credit. See 730 ILCS 5/5-4.5-100 (West 2014). Defendant argues against
placing too much emphasis on the “upon application” phrase and stresses that it
was just one of several reasons underlying the decisions in Caballero and
Woodard. This argument is unpersuasive. A careful reading of those cases reveals
that the “upon application” language was pivotal to this court’s reasoning. In fact, it
was the lynchpin of the analysis because it demonstrated the legislature’s intent to
permit a request for per diem credit in the appellate court, even where the issue has
not been properly preserved for review. As this court has recognized, the inclusion
of that statutory language was a specific and exceptional circumstance justifying a
departure from our usual rules of procedural default. See People v. Lewis, 234 Ill.
2d 32, 42 (2009) (distinguishing the statutory basis for the decision in Woodard).
Moreover, the general observation in Caballero and Woodard that our appellate
court has treated the two types of sentence credit similarly does not detract from
this conclusion. See Caballero, 228 Ill. 2d at 84; Woodard, 175 Ill. 2d at 457.
Neither Caballero nor Woodard examined the provision governing presentence
custody credit or specifically addressed whether that language could be construed
to require that procedural default be excused. Because section 5-4.5-100 does not
contain language demonstrating a legislative intent that claims for presentence
custody credit are not subject to forfeiture, the reasoning employed in Caballero
and Woodard does not apply.
¶ 27 Defendant urges that to treat claims for presentence custody credit differently
from per diem credit claims is unduly harsh because the entitlement to credit that
will reduce the amount of time a prisoner is confined involves significant liberty
interests—concerns that are not at issue in claims for monetary credit against fines.
We acknowledge the logic underlying defendant’s contention. However, our
decision is grounded in the plain language of section 5-4.5-100 and the fact that the
legislature has not included the “upon application” language that was deliberately
included in the provision governing per diem monetary credit. See People v.
Williams, 239 Ill. 2d 503, 510 (2011) (rejecting the argument that section 5-4.5-100
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must be construed in the same manner as section 110-14, which is part of an
entirely separate code).
¶ 28 We next address defendant’s argument that Illinois Supreme Court Rule 615(b)
(eff. Jan. 1, 1967) permitted the appellate court to grant his claim for presentence
custody credit despite the fact that it was raised for the first time on appeal from
postconviction proceedings. See e.g., People v. Andrews, 365 Ill. App. 3d 696, 699
(2006). Rule 615(b)(1) provides that a court of review may “modify the judgment
or order from which the appeal is taken,” as limited by subsection (b)(4), which
permits a reviewing court to “reduce the punishment imposed by the trial court.” Ill.
S. Ct. R. 615(b)(1), (4) (eff. Jan. 1, 1967). However, the grant of authority to
modify a judgment of the circuit court cannot be isolated from the limitation that
immediately follows—that modification must affect the judgment from which the
appeal is taken. The judgment at issue in this case is not the sentencing order
entered by the circuit court in 2006. Rather, the challenged judgment is the
dismissal of defendant’s successive postconviction petition, which did not assert
any claim based on the miscalculation of presentence custody credit. This court has
previously explained that, because the appellate court does not possess supervisory
authority (see Ill. Const. 1970, art. VI, § 16 (“General administrative and
supervisory authority over all courts is vested in the Supreme Court ***.”)), it
cannot address postconviction claims that are not raised in the initial petition.
People v. Jones, 213 Ill. 2d 498, 507 (2004). The same rule applies to a successive
postconviction petition. The authority granted by Rule 615(b) presumes that the
issue underlying the requested relief is properly before the reviewing court. That
circumstance does not exist in cases where a statutory claim for presentence
custody credit is presented for the first time on appeal from the dismissal of either
an initial or a successive postconviction petition that did not assert the claim. Id.
¶ 29 Defendant also argues that the appellate court should have addressed his
statutory claim for presentence custody credit as a motion to correct the mittimus.
See e.g., People v. Brown, 371 Ill. App. 3d 972, 986 (2007); People v. Wren, 223
Ill. App. 3d 722, 731 (1992). This argument is misguided. As this court has
recognized, although a circuit court may not modify its judgment after it has lost
jurisdiction over a case, it may correct the mittimus so that it accurately reflects the
judgment that was entered. People v. Latona, 184 Ill. 2d 260, 278 (1998). Also, the
correction of a mittimus can be accomplished at any time. Id. This authority
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extends to the appellate court by virtue of Illinois Supreme Court Rule 366(a)(5)
(eff. Feb. 1, 1994), which permits a reviewing court to enter any order that ought to
have been made. However, the appellate court is authorized to order correction of a
mittimus only where it is inconsistent with the judgment entered by the circuit
court.
¶ 30 That is not the circumstance presented here. Defendant does not, and cannot,
assert that the mittimus is inaccurate in this case because the judgment entered by
the circuit court granted him 215 days of presentence custody credit. The relief
defendant seeks is not correction of the mittimus but, rather, amendment of the
sentencing judgment to reflect the correct calculation of the amount of presentence
custody credit to which he is entitled. See 735 ILCS 5/2-1801(a) (West 2014)
(providing that a copy of the circuit court’s judgment constitutes the mittimus).
That is not something that can be accomplished by the appellate court on appeal
from the dismissal of a successive postconviction petition that did not raise the
claim.
¶ 31 As set forth above, we find no recognized exception that applies in this case to
excuse the procedural default of the custody-credit claim. Consequently, the
appellate court properly refused to grant the credit requested by defendant for the
first time in his appeal from the dismissal of his postconviction petition. To the
extent that the appellate court’s decisions in Andrews, Brown, and Wren hold to the
contrary, they are hereby overruled.
¶ 32 Defendant has argued, in the alternative, that this court should announce a new
rule in this opinion to allow a defendant to seek correction of a miscalculation of
presentence custody credit at any time and at any stage of proceedings. We decline
defendant’s request. The assertion of an error in sentencing credit is best resolved
in the circuit court, where any factual disputes as to the proper amount of credit can
be adjudicated. Moreover, in People ex rel. Berlin v. Bakalis, 2018 IL 122435,
¶ 27, this court recently referred this matter to our rules committee. The proposal
referred to the rules committee in Bakalis encompasses defendant’s request to the
extent that, if adopted, it will provide a mechanism that would enable defendants to
obtain a corrected calculation of presentence custody credit in the circuit court.
¶ 33 As a second alternative argument, defendant requests that we exercise our
supervisory authority to grant him the additional 183 days of presentence custody
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credit. The State does not oppose the request that we exercise our supervisory
authority but asserts that granting the additional credit outright is inappropriate in
this case. The State points out that an award of credit for time spent confined for
psychiatric treatment prior to judgment is discretionary and may be granted if the
circuit court finds that the detention or confinement was custodial. 730 ILCS
5/5-4.5-100 (West 2014). As a consequence, the State contends that this case
should be remanded to the circuit court for a determination of the correct amount of
credit to which defendant is entitled. We agree that this is a question best answered
by the circuit court.
¶ 34 Accordingly, in the exercise of our supervisory authority (Ill. Const. 1970, art.
VI, § 16), we order the circuit court to address defendant’s claim on remand and
determine the amount of additional presentence custody credit to which he is
entitled. In addition, we order the circuit court to appoint counsel to represent
defendant at the proceedings on remand.
¶ 35 Finally, we address defendant’s citation of our recent decision in People v.
Vara, 2018 IL 121823, as it relates to the appellate court’s judgment in this case. In
Vara, we held that the appellate court lacks jurisdiction to consider a challenge
directed at fines recorded by the circuit clerk that were not included in the sentence.
Id. ¶¶ 13-23, 30. As explained in Vara, although the recording of fines not imposed
by the court is invalid, the clerk’s action is not subject to direct review because the
appellate court is vested with jurisdiction to review only final judgments entered by
the circuit court. Id. ¶¶ 23, 30.
¶ 36 In appealing the dismissal of his successive postconviction petition, defendant
requested the vacatur of three fines recorded against him by the circuit clerk: the
$50 court-finance assessment, the $10 medical-costs assessment, and the $25
violent-crime-victims-assistance assessment. 2017 IL App (4th) 150575-U, ¶ 46.
The State conceded the invalidity of those assessments, and the appellate court
ordered that they be vacated by the circuit court. Id. In accordance with our
decision in Vara, we hold that the appellate court did not have jurisdiction to
address defendant’s challenge of the invalid assessments. Accordingly, we vacate
the portion of the appellate court’s judgment directing that the assessments be
vacated by the circuit court.
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¶ 37 III. CONCLUSION
¶ 38 For the foregoing reasons, the judgment of the appellate court is affirmed in
part and vacated in part, and the cause is remanded to the circuit court for further
proceedings as ordered by the appellate court and consistent with the views
expressed herein.
¶ 39 Appellate court judgment affirmed in part and vacated in part.
¶ 40 Cause remanded with directions.
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