Bonilla v. State , 443 Md. 1 ( 2015 )

Tommy Garcia Bonilla v. State of Maryland, No. 63, September Term, 2014, Opinion by
Adkins, J.
SENTENCING — MARYLAND RULES 4-243(c)(3) AND 4-345(a) — SENTENCES
BELOW A BINDING PLEA AGREEMENT — ILLEGAL SENTENCES: Maryland
Rule 4-243(c)(3) provides that when a sentencing court approves a plea agreement, it must
sentence the defendant in accordance with the terms of the agreement. If the sentencing
court imposes a sentence below what the parties agreed to, and the State does not consent,
the sentence is inherently illegal and subject to correction under Maryland Rule 4-345(a).
Circuit Court for Prince George’s County
Case No.: CT89-1205B
Argued: March 9, 2015
IN THE COURT OF APPEALS
OF MARYLAND
No. 63
September Term, 2014
TOMMY GARCIA BONILLA
v.
STATE OF MARYLAND
Harrell
Battaglia
Greene
Adkins
McDonald
Watts,
Cathell, Dale R. (Retired,
Specially Assigned),
JJ.
Opinion by Adkins, J.
Filed: May 22, 2015
In Maryland, “[a]n illegal sentence is a sentence ‘not permitted by law.’” State v.
Wilkins, 393 Md. 269, 273, 900 A.2d 765, 767–68 (2006) (citation omitted). Pursuant to
Maryland Rule 4-345(a), a “court may correct an illegal sentence at any time.” This Court
has “held that a sentence that exceeds the sentence to which the parties agreed as part of a
plea agreement is an illegal sentence within the meaning of Rule 4-345(a).” Cuffley v.
State, 416 Md. 568, 575 n.1, 7 A.3d 557, 561 n.1 (2010) (emphasis added) (citing Dotson
v. State, 321 Md. 515, 521–22, 583 A.2d 710, 713 (1991)). In this case, we consider
whether a sentence is illegal under Rule 4-345(a) when a sentencing court imposes a
sentence below the sentence agreed to in a binding plea agreement1 without the State’s
consent.
FACTS AND LEGAL PROCEEDINGS
In 1989, a Prince George’s County grand jury indicted Petitioner, Tommy Garcia
Bonilla, on two counts of first degree murder and several other serious crimes. Count I of
the indictment charged Bonilla with the first degree murder of Jose Lozano, and Count III
charged Bonilla with the first degree murder of Ruth Vasquez.
At an August 28, 1990 hearing in the Circuit Court for Prince George’s County,
Bonilla pleaded guilty to Counts I and III pursuant to a binding plea agreement with the
State.2 This agreement provided that Bonilla would, if called by the State, testify truthfully
against one of his co-defendants, Freddy DeLeon, and would plead guilty to Counts I and
1
Throughout this Opinion, we use “binding plea agreement” to refer to a plea
agreement the court has approved pursuant to Maryland Rule 4-243(c).
2
We shall refer to Bonilla and the State collectively as the “Parties.”
III. In exchange, the State agreed that Bonilla would receive a sentence of life
imprisonment on Count III with a consecutive sentence of life imprisonment, with all but
20 years suspended, on Count I. The State further agreed that it would withdraw its notice
of intent to seek a sentence of life without the possibility of parole and would enter a nolle
prosequi to the remaining counts in the indictment. This was presented to the judge as a
proposed binding plea agreement. After a proffer of facts by the State,3 the hearing judge
determined that Bonilla was knowingly and voluntarily pleading guilty and accepted his
guilty pleas. The hearing judge then approved the plea agreement—stating on the record
that he was “bound” by its terms—and postponed sentencing until after DeLeon’s trial.
On February 20, 1991, having fulfilled his obligation to testify truthfully against
DeLeon, Bonilla appeared before the Circuit Court for sentencing. When outlining the
sentencing terms of the plea agreement, defense counsel reversed the terms—incorrectly
stating that the Parties agreed to a sentence of life imprisonment on Count I and a
3
The Court of Special Appeals summarized the proffered facts to which Bonilla
admitted:
1) [A]bout one month before the murders of Mr. Lozano and
Ms. Vasquez, [Bonilla] and [DeLeon] formed a plan; 2) the
plan was to enter apartment No. 508, located at 1802 Metzerott
Road, in Prince George’s County, to kill whomever they found
there and to steal cocaine that they believed to be in the
apartment; 3) on April 14, 1989, Bonilla and DeLeon entered
apartment 508, ransacked it, and stole the cocaine and jewelry
they found in the apartment; 4) while in the apartment,
DeLeon, using a 9 mm handgun, shot Jose Lozano once in the
back of the head, killing him instantly; and 5) after Mr. Lozano
was killed, Bonilla, using a 38 caliber handgun, killed Ruth
Vasquez by shooting her once in the chest.
Bonilla v. State, 217 Md. App. 299, 301, 92 A.3d 595, 596 (2014), cert. granted, 440 Md.
114, 99 A.3d 778 (2014).
2
consecutive sentence of life imprisonment, with all but 20 years suspended, on Count III.
The State did not recognize this error and agreed with the sentence presented by defense
counsel. Consistent with the Parties’ representations, the court sentenced Bonilla to life
imprisonment on Count I and a consecutive sentence of life imprisonment, with all but 20
years suspended, on Count III.
Over two decades later, on November 7, 2011, Bonilla filed a Motion to Correct
Illegal Sentence and Motion for Credit Against Time Spent in Custody, arguing that his
sentence on Count I was illegal because it “exceed[ed] the sentence agreed upon by the
parties under the terms of the binding plea agreement.” In response, the State filed a
Motion to Correct the Entire Sentence, contending that the sentences on Count I and Count
III were illegal because they deviated from the binding plea agreement. On February 7,
2012, the Circuit Court issued a Memorandum and Order, concluding that the sentences on
both counts were illegal and ordering a resentencing “in accordance with the original plea
agreement.” At the resentencing hearing, the Circuit Court resentenced Bonilla to life
imprisonment on Count III and a consecutive sentence of life imprisonment, with all but
20 years suspended, on Count I. Bonilla appealed.
In a reported opinion authored by Judge Salmon, the Court of Special Appeals
affirmed the judgment of the sentencing court, agreeing that Bonilla’s original sentence on
Count III was illegal because it was below the binding plea agreement. Bonilla v. State,
217 Md. App. 299, 92 A.3d 595 (2014), cert. granted, 440 Md. 114, 99 A.3d 778 (2014).
Bonilla petitioned for writ of certiorari, which this Court granted to answer the following
question:
3
Did the Court of Special Appeals err by affirming the Circuit
Court’s judgment that a sentence below a binding plea
agreement constitutes an illegal sentence [within the meaning
of Rule 4-345(a)]?
Because we answer no, we shall affirm the judgment of the Court of Special Appeals.
STANDARD OF REVIEW
We review the legal issue of the sentencing in this case as a matter of law. See
Cuffley, 416 Md. at 581, 7 A.3d at 564 (“Whether a trial court has violated the terms of a
plea agreement is a question of law, which we review de novo.”); Blickenstaff v. State, 393
Md. 680, 683, 904 A.2d 443, 445 (2006) (“We shall address the legal issue of the
sentencing in the case at bar under a de novo standard of review.”).
DISCUSSION
Whether A Sentence Below A Binding Plea Agreement Is “Inherently Illegal”
Within The Meaning Of Rule 4-345(a)?
We begin by briefly defining what constitutes an illegal sentence under Rule 4-
345(a). For a sentence to be illegal within the meaning of Rule 4-345(a) “the illegality
must inhere in the sentence itself, rather than stem from trial court error during the
sentencing proceeding.” Matthews v. State, 424 Md. 503, 512, 36 A.3d 499, 505 (2012).
Accordingly, “we have denied relief pursuant to Rule 4-345(a) because the sentences
imposed were not inherently illegal, despite some form of error or alleged injustice.” Id.
at 513, 36 A.3d at 505 (emphasis added).
Bonilla argues that his original sentence on Count III was legal under Rule 4-345(a)
because it was the product of an “error in pronouncement” and was not inherently illegal.
The State, concurring there was error, disagrees that the sentence was legal, arguing that
4
“any sentence imposed in violation of a binding plea agreement constitutes an inherently
illegal sentence, whether a sentence exceeds or falls below the plea agreement.” To resolve
this dispute, we turn first to Maryland Rule 4-243(c)(3)—the Rule that governs a
sentencing court’s obligations when imposing a sentence pursuant to a binding plea
agreement.
Rule 4-243(c)(3) now provides, as it did in 1991 when Bonilla was first sentenced,
that when “[a] plea agreement is approved, the judge shall embody in the judgment the
agreed sentence, disposition, or other judicial action encompassed in the agreement or,
with the consent of the parties, a disposition more favorable to the defendant than that
provided for in the agreement.” (Emphasis added.) In this case, Rule 4-243(c)(3) required
the sentencing court to impose the sentencing terms in the binding plea agreement, and the
Parties had agreed to a sentence of life imprisonment on Count III—not the lower sentence
of life imprisonment, with all but 20 years suspended, that the sentencing court imposed.
The State never consented to this lower sentence.4 Because the Maryland Rules “have the
4
During the sentencing hearing, the State made it clear that it would not consent to
a sentence below the binding plea agreement:
This is a[ binding] plea and I want to make the record clear.
There has been no discussion nor any agreement by the State
of any reconsideration.
The law in 24 states, as it stands right now, is that if the Court,
the defendant, and State enter into a[ binding plea] agreement
that sentence will not be changed unless there’s consent by all
three parties.
The State does not consent to that nor does it expect to.
5
force of law,” Dotson, 321 Md. at 523, 583 A.2d at 714 (citation omitted), the sentencing
court committed legal error when it deviated from the plea agreement by imposing a lower
sentence on Count III. This does not end our inquiry, however, because in order to
determine whether the original sentence on Count III was illegal under Rule 4-345(a), we
must resolve whether the sentencing court’s error rendered the sentence inherently illegal.
In Dotson and Cuffley, we considered whether a sentence is inherently illegal within
the meaning of Rule 4-345(a) when a sentencing court violates Rule 4-243(c)(3) by
imposing a sentence that exceeds the binding plea agreement. In Dotson, the defendant
pleaded guilty to two counts of sexual offense in the second degree, and the trial court,
pursuant to a plea agreement that it approved, sentenced him to concurrent sentences of 15
years imprisonment for each conviction. 321 Md. at 519–20, 583 A.2d at 712. The
defendant moved for reconsideration of his sentence by a review panel. Id. at 520, 583
A.2d at 712. The panel vacated the trial court’s sentence and imposed a sentence of 15
years on each conviction to run consecutively rather than concurrently—thereby increasing
the sentence from 15 to 30 years. Id. at 521, 583 A.2d at 713. The defendant appealed,
arguing that the sentence imposed by the review panel was illegal. Id.We agreed that the review panel’s sentence was illegal, emphasizing that Rule 4-
243(c)(3) required the trial judge to sentence the defendant in accordance with the plea
(Emphasis added.) The State only requested a sentence of life imprisonment, with all but
20 years suspended, on Count III because that was the sentence defense counsel mistakenly
requested at the beginning of the sentencing hearing. The language quoted above
demonstrates that the State never consented to a sentence below the binding plea
agreement.
6
agreement: “When the judge accepted the pleas, the agreement as to punishment came into
full bloom; it stood approved by the judge. Thereafter, the agreement was inviolate, and
the judge was required under the dictate of Rule 4-243(c)(3) to embody in the judgment
the agreed sentence.” Id. at 523, 583 A.2d at 714. Because “[o]ur rules have the force of
law,” we determined that Rule 4-243(c)(3) dictated that the 15-year sentence provided in
the plea agreement was the maximum sentence “allowable by law.” Id. (citation omitted).
Thus, we reasoned, the review panel’s sentence was inherently illegal because it exceeded
the plea agreement.5 Id. at 524, 583 A.2d at 714.
Over a decade later, in Cuffley, we again considered whether a sentence that exceeds
the terms of a binding plea agreement is illegal. Cuffley pleaded guilty to robbery pursuant
to a plea agreement under which the State agreed to a guidelines sentence of four to eight
years. Cuffley, 416 Md. at 573–74, 7 A.3d at 560. After ensuring that Cuffley was
knowingly and voluntarily entering the plea, the hearing court accepted the plea agreement
pursuant to Rule 4-243(c) and bound itself to its terms. Id. at 574, 7 A.3d at 560. At the
ensuing sentencing hearing, the court imposed a sentence of 15 years imprisonment with
all but six years suspended. Id.5
Although Dotson did not explicitly address Rule 4-345(a), in Cuffley v. State, we
confirmed that Dotson stands for the proposition that when a sentencing court violates Rule
4-243(c)(3) by imposing a sentence that exceeds a binding plea agreement, the sentence is
inherently illegal under Rule 4-345(a). See 416 Md. 568, 575 n.1, 7 A.3d 557, 561 n.1
(2010) (“We have held that a sentence that exceeds the sentence to which the parties agreed
as part of a plea agreement is an illegal sentence within the meaning of Rule 4-345(a).”
(citing Dotson v. State, 321 Md. 515, 521–22, 583 A.2d 710, 713 (1991))).
7
Cuffley filed a Rule 4-345(a) motion, contending that his sentence was illegal
because it exceeded the maximum sentence of eight years to which the court had bound
itself. Id. at 574–75, 7 A.3d at 561. The sentencing court denied the motion, concluding
that it had discretion to suspend time, this discretionary power was “alluded to” at the plea
hearing, and Cuffley “got exactly what he bargained for.” Id. at 576, 7 A.3d at 561. We
disagreed. After emphasizing that Rule 4-243(c)(3) “mandates that the court, upon
accepting and approving the agreement, ‘shall embody in the judgment the agreed
sentence,’” id. at 581, 7 A.3d at 565 (emphasis in original), we explained that “by its
express terms, Rule 4-243 requires strict compliance with its provisions,” id. at 582, 7 A.3d
at 565. We then applied Rule 4-243(c)(3) to Cuffley’s plea agreement to conclude that
because the sentencing court “breached the agreement by imposing a sentence that
exceeded a total of eight years’ incarceration[,] [t]he sentence [was] illegal.” Id. at 586, 7
A.3d at 567.
Two years after Cuffley, in Matthews v. State, we further elaborated on our
conclusions in Cuffley. We explained that “Cuffley adhered to our precedent limiting relief
pursuant to Rule 4-345(a) to challenges to inherently illegal sentences.” Matthews, 424
Md. at 517, 36 A.3d at 508 (emphasis added). We emphasized that because Cuffley’s
sentence varied from the sentence the court was required to impose pursuant to Rule 4-
243(c)(3), “the sentence was not merely the product of procedural error; rather it was
inherently illegal and thereby subject to correction under Rule 4-345(a).” Id. at 518, 36
A.3d at 508 (emphasis added); see also id. at 517, 36 A.3d at 507 (“We viewed the illegality
[of Cuffley’s sentence] as inhering in the sentence itself; the sentence, in other words, was
8
not merely the product of procedural or trial court error.” (emphasis added) (footnote
omitted)).
As Bonilla recognizes, the sentences this Court declared inherently illegal in Dotson
and Cuffley exceeded the plea agreements. Neither our reasoning nor our holdings in those
cases, however, suggest that striking a sentence as illegal can only occur when a sentence
exceeds the terms of a binding plea agreement. In both cases, we determined that the
sentences were illegal because the sentencing courts violated Rule 4-243(c)(3) by deviating
from the binding plea agreements. See Dotson, 321 Md. at 523, 583 A.2d at 714 (“[T]he
judge was required under the dictate of Rule 4-243(c)(3) to embody in the judgment the
agreed sentence.”); Cuffley, 416 Md. at 581–82, 7 A.3d at 565 (Rule 4-243(c)(3) mandates
that after accepting a plea agreement, the court “shall embody in the judgment the agreed
sentence” and “Rule 4-243 requires strict compliance” (emphasis in original)).
Chertkov v. State, 335 Md. 161, 642 A.2d 232 (1994) is also instructive because it
not only bolsters our broad reading of Dotson, but also addresses whether a sentence is
inherently illegal under Rule 4-345(a) when a sentencing court violates Rule 4-243(c)(3)
by imposing a sentence below a binding plea agreement. In that case, the defendant
negotiated a plea agreement with the State that provided for concurrent three-year terms of
incarceration with all but 179 days suspended. Id. at 164, 642 A.2d at 233. The Circuit
Court for Montgomery County approved the plea agreement and sentenced the defendant
in accordance with its terms. Id. at 165, 642 A.2d at 234. The defendant filed a motion
for reconsideration of the sentence, requesting that the sentencing court strike the findings
of guilt and impose probation before verdict pursuant to Maryland Code (1957, 1992 Repl.
9
Vol.), Article 27, §641. Id. Over the State’s objection, the court granted the relief
requested, and the State appealed. Id. The Court of Special Appeals reversed the Circuit
Court, concluding that the State was entitled to appeal and determining that a trial court
had no authority to modify a sentence imposed pursuant to a binding plea agreement. Id.
at 165–66, 642 A.2d at 234.
We dismissed the appeal, concluding that the State had no right to appeal the trial
court’s modification of the sentence. Id. at 163, 175, 642 A.2d at 233, 239. Although we
recognized that our decision to dismiss the appeal would ordinarily end our inquiry, we
stated that because “[p]lea bargaining is a significant, if not critical, component of the
criminal justice system,” id. at 170–71, 642 A.2d at 237 (citation omitted), we would
“express our views concerning whether a binding plea agreement precludes a trial court
from modifying a sentence imposed pursuant to it,” id. at 171, 642 A.2d at 237. After
reciting the pertinent provisions of Rule 4-243 and reviewing our decision in Dotson, we
concluded that Rule 4-243(c)(3) prohibits a sentencing court from imposing a sentence
below a binding plea agreement if the parties do not agree to the deviation:
Subsection (c)(2)[6] makes clear that until the trial judge
approves a plea agreement, it is not binding on the court.
Conversely, and necessarily, when the court does approve a
plea agreement, because it is required that the sentence or
disposition it contemplates must be embodied in the court’s
6
Maryland Rule 4-243(c)(2) provides, as it did at the time of our decision in
Chertkov:
Not Binding on the Court. The agreement of the State’s
Attorney relating to a particular sentence, disposition, or other
judicial action is not binding on the court unless the judge to
whom the agreement is presented approves it.
See also Chertkov v. State, 335 Md. 161, 171, 642 A.2d 232, 237 (1994).
10
judgment, it is. Indeed, the court may impose a disposition
more favorable to the defendant only if the parties agree.
Id. at 172, 642 A.2d at 237 (emphasis added) (internal citation omitted). We determined
that Dotson supports the conclusion that sentences below binding plea agreements are
illegal:
From Dotson and Rule 4-243(c)(3), it is clear that a court that
binds itself to fulfill the plea agreement thereby relinquishes
his or her right to modify the sentence, thereby imposed, absent
the consent of the parties, and, in particular, in the case of
reducing the sentence, absent the consent of the State.
Id. at 174–75, 642 A.2d at 239 (emphasis added).
Considering Dotson, Cuffley, Matthews, and Chertkov, we conclude that when a
sentencing court violates Rule 4-243(c)(3) by imposing, without consent, a sentence that
falls below a binding plea agreement, the resulting sentence is inherently illegal under Rule
4-345(a). Thus, in this case, because the original sentence on Count III was below the
binding plea agreement and the State did not consent to this deviation, the sentence was
inherently illegal and subject to correction under Rule 4-345(a).
Preserving Fairness, Equity, And Certainty
Sound policy also supports our foregoing conclusion. Bonilla argues that
“[b]ecause Rule 4-345(a) permits the correction of an illegal sentence at any time, the
definition of an illegal sentence [should be] construed narrowly in the interests of
predictability, finality, and judicial economy.” We do not agree that narrowly construing
Rule 4-345(a) to conclude that sentences below binding plea agreements are legal would
11
advance judicial economy. Such interpretation, moreover, would require us to ignore the
principles of fairness and equity and undermine the certainty that plea agreements provide.
In Cuffley, we confirmed that “fairness and equity govern the enforcement of plea
agreements.” 416 Md. at 580, 7 A.3d at 564 (citing State v. Brockman, 277 Md. 687, 698,
357 A.2d 376, 383 (1976)). As such, when the State and a defendant have entered a binding
plea agreement, each party is entitled to the benefit of its bargain. Concluding that
sentences below binding plea agreements are legal under Rule 4-345(a) would be unfair to
the State by depriving it of the benefit of its bargain. For example, in this case, the State
agreed to withdraw its notice of intent to seek a sentence of life without the possibility of
parole7 and enter a nolle prosequi to several counts on the indictment. In exchange, Bonilla
agreed, among other actions, to plead guilty to Count III and accept a sentence of life
imprisonment. It would be unfair and inequitable to prevent the State from challenging the
original, overly low, sentence on Count III when it bargained for a higher sentence,
particularly after Bonilla had sought and obtained a reduction of the overly high sentence
on Count I.
For us to conclude that sentences below binding plea agreements are legal would
undermine the certainty that plea agreements provide. “It is well documented that plea
[agreements] play a crucial role in the system of criminal justice in Maryland and
throughout the United States.” Cuffley, 416 Md. at 577, 7 A.3d at 562. Plea agreements
7
During the sentencing hearing, the State explained that agreeing not to pursue a
sentence of life without the possibility of parole represented a large “break” for Bonilla
because first degree murder “is the type of crime . . . that merits that kind of punishment.”
12
play a crucial role in our criminal justice system because they provide certainty. See
Dotson, 321 Md. at 518, 583 A.2d at 711 (citation omitted). In Dotson, we explained that
determining that the review panel’s sentence, which exceeded the plea agreement, was
legal would “violate the sanctity of the plea agreement process” and undermine the
certainty that plea agreements provide. Id. at 524, 583 A.2d at 714 (citation omitted).
Concluding that a sentence below a binding plea agreement is legal would also undermine
this certainty.
The State and defendants would be discouraged from entering plea agreements if
they could not be certain that sentencing courts will comply with binding plea agreements.
In Dotson, we warned that “[i]f a defendant could not rely upon the plea bargain, the
chilling effect upon the very institution of plea bargaining would be devastating.” Id. This
“chilling effect” is not limited to violations of plea agreements that prejudice the defendant:
Just as a defendant would be loathe to participate in plea
bargaining if he or she could not be certain that the bargain that
he or she made would be fulfilled, so too would the State.
There would be no incentive for the State to engage in plea
bargaining if it were possible for a defendant to enter into
a binding plea agreement only to have the sentence
contemplated by that agreement modified a short time
later.
Chertkov, 335 Md. at 174, 642 A.2d at 238–39 (emphasis added); see also Sweetwine v.
State, 42 Md. App. 1, 12, 398 A.2d 1262, 1269 (1979) (“If the prosecutor cannot rely upon
the plea bargain, the potential ‘chilling effect’ upon the very institution of plea bargaining
could be devastating.”), aff’d, 288 Md. 199, 421 A.2d 60 (1980).
13
Discouraging the State or the defendant from entering plea agreements would have
wide-ranging adverse effects because by promoting finality, certainty, and judicial
economy, “plea agreements benefit the courts, the prosecution, the defendant, the victim,
and the general public.” Dotson, 321 Md. at 518, 583 A.2d at 711. Because “plea
agreements account for the disposition of an overwhelming percentage of all criminal
cases,” they “prevent[], or at least reliev[e], the overcrowding of our courts.” Id. at 517,
583 A.2d at 710–11 (citations and internal quotation marks omitted). By terminating
charges, plea agreements
lead[] to [the] prompt and largely final disposition of most
criminal cases; . . . avoid[] much of the corrosive impact of
enforced idleness during pretrial confinement for those who
are denied release pending trial; . . . protect[] the public from
those accused persons who are prone to continue criminal
conduct even while on pretrial release; and, by shortening the
time between charge and disposition, . . . enhance[] whatever
may be the rehabilitative prospects of the guilty when they are
ultimately imprisoned.
Id. at 517, 583 A.2d at 711 (second alteration in original) (citation and internal quotation
marks omitted). Moreover, “plea agreements eliminate many of the risks, uncertainties
and practical burdens of trial, permit the judiciary and prosecution to concentrate their
resources on those cases in which they are most needed, and further law enforcement by
permitting the State to exchange leniency for information and assistance.” Id.Plea agreements are so beneficial that “within reason, [they] should be encouraged.”
Id. Concluding that sentences below binding plea agreements are legal would have the
opposite effect—it would discourage plea agreements by reducing the incentive for the
State to enter them. This result should be avoided.
14
CONCLUSION
In conclusion, we hold that when a sentencing court violates Rule 4-243(c)(3) by
imposing a sentence below a binding plea agreement without the State’s consent, the
sentence is inherently illegal and subject to correction under Rule 4-345(a). Accordingly,
we affirm the judgment of the Court of Special Appeals.
JUDGMENT OF THE COURT OF
SPECIAL APPEALS AFFIRMED.
COSTS TO BE PAID BY
PETITIONER.
15