State v. Griffin , 2012 Ohio 503 ( 2012 )

[Cite as State v. Griffin, 2012-Ohio-503.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24001
vs. : T.C. CASE NO. 09CR1117/3
DE’ARGO GRIFFIN : (Criminal Appeal from
Common Pleas Court)
Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 10th day of February, 2012.
. . . . . . . . .
Mathias H. Heck, Jr., Pros. Attorney; Kirsten A. Brandt, Asst.
Pros. Attorney, Atty. Reg. No. 0070162, P.O. Box 972, Dayton,
Ohio 45422
Attorneys for Plaintiff-Appellee
Kent J. Depoorter, Atty. Reg. No. 0058487, 7501 Paragon Road, Lower
Level, Dayton, Ohio 45459
Attorney for Defendant-Appellant
. . . . . . . . .
GRADY, P.J.:
{¶ 1} Defendant, De’Argo Griffin, appeals from his convictions
and sentences for possession of heroin, possession of criminal
tools, and engaging in a pattern of corrupt activity,
{¶ 2} On April 10, 2009, Defendant and two co-defendants,
2
Anthony Franklin and Deshawn Foster, were indicted on one count
of possessing of heroin, between ten and fifty grams, in violation
of R.C. 2925.11(A). Defendant filed a motion seeking a separate
trial from that of his co-defendants. On October 26, 2009,
Defendant and his two co-defendants were indicted on additional
charges: five counts of possessing criminal tools, R.C. 2923.24(A),
and one count of engaging in a pattern of corrupt activity, R.C.
2923.32(A)(1), based upon multiple acts of possessing and selling
crack cocaine and heroin between May 13, 2006 and April 2, 2009.
Defendant filed an amended motion for a separate trial. The
motion was denied. The court set a trial date of March 1, 2010.
{¶ 3} On February 23, 2010, Attorney William Daly entered his
appearance as co-counsel for Defendant. Three days later, on
February 26, 2010, Attorney Daley filed a motion on behalf of
Defendant to relieve court-appointed counsel J. Allen Wilmes as
counsel for Defendant, to substitute Attorney Daley as counsel
for Defendant, and to continue the trial. The trial court
overruled Defendant’s motion on March 1, 2010, following a hearing.
{¶ 4} Defendant Griffin and co-defendant Franklin were tried
together before a jury beginning on or about March 2, 2010.
Co-defendant Foster had entered pleas of guilty before trial.
Defendant filed a pro se motion renewing his request for
substitution of counsel and a continuance of the trial so that
3
Attorney Daley could represent him. The trial court denied
Defendant’s motion. Following a jury trial, Defendant was found
guilty of all charges. The trial court sentenced Defendant to
concurrent prison terms totaling five years and a fifteen thousand
dollar fine.
{¶ 5} Defendant timely appealed to this court from his
conviction and sentence.
FIRST ASSIGNMENT OF ERROR
{¶ 6} “APPELLANT’S CONVICTION UNDER R.C.2923.32(A)(1),
ENGAGING IN A PATTERN OF CORRUPT ACTIVITY, MUST BE REVERSED BECAUSE
INSUFFICIENCIES IN THE INDICTMENTS RENDER THE CONVICTION VOID FOR
LACK OF SUBJECT MATTER JURISDICTION AND FAILURE TO CHARGE AN
OFFENSE.”
{¶ 7} Defendant argues that the indictment is defective
because it fails to allege each specific corrupt activity or offense
in which Defendant participated that make up the Engaging in a
Pattern of Corrupt Activity charge in violation of R.C.
2923.32(A)(1). We addressed this same argument in the appeal of
Defendant’s co-defendant, Anthony Franklin, and concluded that
the indictment charging Engaging in a Pattern of Corrupt Activity
in the words of the applicable statute, R.C. 2923.32(A)(1), is
not defective because it fails to specify each corrupt activity
in which Defendant is alleged to have participated. State v.
4
Franklin, 2nd Dist., Montgomery App. Nos. 24011, 24012,
2011-Ohio-6802. For the reasons stated in our opinion in Franklin,
Defendant’s first assignment of error is overruled.
SECOND ASSIGNMENT OF ERROR
{¶ 8} “THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED
APPELLANT’S SIXTH AND FOURTEENTH AMENDMENT RIGHTS BY DENYING THE
APPELLANT’S MOTION TO BE REPRESENTED BY RETAINED COUNSEL OF HIS
CHOICE.”
{¶ 9} Defendant argues that the trial court abused its
discretion when it denied his requests to substitute his
newly-retained counsel for his court appointed counsel, and for
a continuance of the trial made necessary by the requested
substitution.
“Abuse of discretion” has been defined as an attitude
that is unreasonable, arbitrary or unconscionable.
Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83,
87, 19 OBR 123, 126, 482 N.E.2d 1248, 1252. It is to
be expected that most instances of abuse of discretion
will result in decisions that are simply unreasonable,
rather than decisions that are unconscionable or
arbitrary.
A decision is unreasonable if there is no sound reasoning
process that would support that decision. It is not
5
enough that the reviewing court, were it deciding the
issue de novo, would not have found that reasoning
process to be persuasive, perhaps in view of
countervailing reasoning processes that would support
a contrary result.
AAAA Enterprises, Inc. v. River Place Community Redevelopment,
50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).
{¶ 10} The decision whether to grant or deny a request for a
continuance is a matter left to the sound discretion of the trial
court. A reviewing court will not disturb that decision absent
an abuse of discretion. State v. Powell, 49 Ohio St.3d 255, 552
N.E.2d 191 (1990); Ungar v. Serafite, 376 U.S. 575, 589, 84 S.Ct.
841, 11 L.Ed.2d 921 (1964).
{¶ 11} In State v. Rash, 111 Ohio App.3d 351, 354, 676 N.E.2d
167, (2nd Dist. 1996), this court observed:
In Ungar, the United States Supreme Court wrote:
The matter of continuance is traditionally within the
discretion of the trial judge, and it is not every denial
of a request for more time that violates due process
even if the party fails to offer evidence or is compelled
to defend without counsel. Contrariwise, a myopic
insistence upon expeditiousness in the face of a
justifiable request for delay can render the right to
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defend with counsel an empty formality. There are no
mechanical tests for deciding when a denial of a
continuance is so arbitrary as to violate due process.
The answer must be found in the circumstances present
in every case, particularly in the reasons presented
to the trial judge at the time the request is made.
(Emphasis added and citations omitted.) Ungar at 589,
84 S.Ct. at 849-850, 11 L.Ed.2d at 931.
The Ohio Supreme Court has adopted and followed a
balancing test from Unger that requires a “reviewing
court to weigh potential prejudice against ‘a court's
right to control its own docket and the public's interest
in the prompt and efficient dispatch of justice.’”
Powell, 49 Ohio St.3d at 259, 552 N.E.2d at 196, citing
Unger, 67 Ohio St.2d at 67, 21 O.O.3d at 43, 423 N.E.2d
at 1080. In Powell, the Supreme Court listed relevant
factors to be considered: (1) length of delay sought,
(2) previous continuances sought or granted, (3)
inconvenience to all involved, (4) legitimacy of reason
for delay, and (5) whether the defendant had caused the
delay. Id.
{¶ 12} The decision whether or not to remove court appointed
counsel and allow substitution of new counsel is also addressed
7
to the sound discretion of the trial court, and its decision will
not be reversed on appeal absent an abuse of discretion. State
v. Murphy, 91 Ohio St.3d 516, 747 N.E.2d 765, 2001-Ohio-112; State
v. Coleman, 2nd Dist. Montgomery No. 19862, 2004-Ohio-1305.
{¶ 13} Defendant wanted a continuance of the trial so that his
newly-retained counsel, William Daley, could be substituted for
his court-appointed attorney, J. Allen Wilmes. In evaluating a
request for substitute counsel, the court must balance the
accused’s right to counsel of his choice against the public’s
interest in the prompt and efficient administration of justice.
Murphy.
{¶ 14} Attorney Daley first entered his appearance as
co-counsel on February 23, 2010. Then, on February 26, 2010, the
Friday before trial was scheduled to commence on Monday, March
1, 2010, Daley filed a motion seeking to relieve court appointed
counsel, J. Allen Wilmes, substitute himself as counsel for
Defendant, and continue the trial to allow Daley time to prepare.
Daley’s motion indicated that the reason Defendant requested
substitution of counsel and a continuance of the trial was due
to a complete lack of communication between Defendant and court
appointed counsel prior to trial; that they had not yet even
discussed the case. The trial court denied Defendant’s request
for substitution of counsel and a continuance of the trial, finding
8
that it was ill-timed and a delaying tactic.
{¶ 15} Defendant’s “eleventh hour” request for substitution
of counsel and a continuance of the trial was filed the Friday
afternoon before trial was scheduled to begin on Monday, March
1, 2010. The trial had previously been continued three times,
once at Defendant’s request. Defendant knew at least six weeks
earlier that he intended to retain William Daley to represent him,
and Daley knew he would have to request a continuance because of
a conflict with another case scheduled before a different judge.
{¶ 16} Despite the fact that both Defendant and Attorney Daley
were in court on February 18, 2010 on a motion to suppress, nothing
was said at that time about needing a continuance. Furthermore,
in his February 23, 2010 notice of appearance as co-counsel,
Attorney Daley made no request for a continuance. That request
was not made until the afternoon of the last business day before
the trial was to begin. By then, potential jurors had been ordered
to appear in court at 9:00 a.m. on Monday morning, March 1, 2010,
and over forty witnesses had been subpoenaed by the State for the
trial.
{¶ 17} The trial court found that the lack of communication
between Defendant and his court-appointed counsel was due to
Defendant’s unwillingness to cooperate. Attorney Wilmes had sent
several letters and made repeated efforts to contact Defendant,
9
which were unsuccessful. When a meeting was finally scheduled,
Defendant failed to appear. When Defendant called Attorney Wilmes
on the Friday before the trial began in order to discuss the case,
Wilmes was out of town at a seminar and unavailable. The trial
court concluded that Defendant caused the lack of communication
problem by failing to cooperate with his court appointed counsel.
On these facts and circumstances, we find no abuse of discretion
in denying Defendant’s eleventh hour request for a substitution
of counsel and a continuance of the trial.
{¶ 18} Defendant’s second assignment of error is overruled.
THIRD ASSIGNMENT OF ERROR
{¶ 19} “THE TRIAL COURT DEMONSTRATED BIAS IN FAVOR OF THE STATE
AND AGAINST APPELLANT.”
{¶ 20} Defendant argues that the trial court demonstrated
judicial bias against him and in favor of the State.
{¶ 21} In Weiner v. Kwait, 2nd Dist. Montgomery No. 19289,
2003-Ohio-3409, we stated:
Judicial bias is “a hostile feeling or spirit of
ill will or undue friendship or favoritism toward one
of the litigants or his attorney, with the formation
of a fixed anticipatory judgment on the part of the judge,
as contradistinguished from an open state of mind which
will be governed by the law and the facts.” State v.
10
LaMar, 95 Ohio St.3d 181, 189, 2002-Ohio-2128 (citations
omitted).
Trial judges are “presumed not to be biased or
prejudiced, and the party alleging bias or prejudice
must set forth evidence to overcome the presumption of
integrity.” Eller v. Wendy's Internatl., Inc., (2000),
142 Ohio App.3d 321, 340, 755 N.E.2d 906 (citations
omitted). In Eller, the court also noted that “[t]he
existence of prejudice or bias against a party is a matter
that is particularly within the knowledge and reflection
of each individual judge and is difficult to question
unless the judge specifically verbalizes personal bias
or prejudice toward a party.” Id.{¶ 22} Defendant first argues that the trial court demonstrated
bias and prejudice against him when it refused to allow his retained
counsel, William Daley, to participate in the hearing held on
March 1, 2010 to determine whether Daley would be substituted as
counsel for Defendant and allowed to represent Defendant at trial.
Defendant’s claim is based upon Daley’s affidavit, which was
attached to Defendant’s pro se renewal motion for substitution
of counsel. Daley stated that the trial judge told him he could
not participate in the hearing. Daley attributes the judge’s
decision to a history of “these same type of issues” between Daley
11
and the judge, which Daley “believes to be a factor in the court’s
determination not to allow Defendant to retain private counsel
of Defendant’s choice.” Affidavit at ¶ 12, 20.
{¶ 23} The judge explained on the record the conversation he
had with Attorney Daley, and the judge specifically denied telling
Daley that he could not attend or participate in the hearing.
The judge told Daley he would not be Defendant’s counsel at that
hearing. The judge left the matter of Daley’s presence at the
hearing up to Daley.
{¶ 24} It appears that there was some confusion or
misunderstanding about whether Daley would appear for the hearing
or instead be informed of the outcome. The hearing was scheduled
for 9:00 a.m. Daley appeared at 10:00 a.m. The trial judge saw
Daley but was occupied with other matters at that time. When the
judge finished his other business, he inquired where Daley was,
but was told Daley had left. Therefore, the court did not have
an opportunity to talk with Daley or put him on the record about
the substitution of counsel issue.
{¶ 25} While the judge may have expressed some frustration over
Daley’s absence, the record does not support Defendant’s contention
that the court prevented Daley from attending the hearing or that
the judge based his decision denying Defendant’s request for
substitution of counsel and a continuance of the trial on Daley’s
12
decision not to attend the hearing. No hostility or ill will
against Defendant on the part of the trial court is demonstrated.
{¶ 26} Defendant additionally argues that the trial court
demonstrated bias in favor of the State by questioning a State’s
witness in a manner that intimated to the jury the court’s opinion
of the evidence the witness offered or the witness’ credibility.
{¶ 27} A trial judge is allowed to interrogate a witness in
an impartial manner, provided the court’s questioning does not
indicate to the jury its opinion on the evidence or the credibility
of the witness. State ex rel. Wise v. Chand (1970), 21 Ohio St.2d
113; Evid.R. 614(B).
{¶ 28} In Jenkins v. Clark, 7 Ohio App.3d 93, 97, 454 N.E.2d
541 (2nd Dist. 1982), this court stated:
In regard to the examination of witnesses, the trial
judge is something more than a mere umpire or sergeant
at arms to preserve order in the courtroom. He has active
duties to perform in maintaining justice and in seeing
that the truth is developed and may for such purpose
put proper questions to the witnesses, and even leading
questions. Gilhooley v. Columbus Ry. Power & L. Co.
(1918), 20 Ohio N.P. (N.S.) 545. If at any time during
the trial of a cause a judge is prompted, in the interest
of justice, to develop facts germane to an issue of fact
13
to be determined by the jury, it is proper that he do
so. Dependabilt Homes, Inc. v. Haettel (1947), 81 Ohio
App. 422.
* * *
In the absence of any showing of bias, prejudice, or
prodding of a witness to elicit partisan testimony, it
will be presumed that the court acted with impartiality
in attempting to ascertain a material fact or to develop
the truth. Gilhooley, supra.
Jenkins, supra, at 98.
{¶ 29} State’s witness, Gary R. Shaffer, a forensic chemist
from the Miami Valley Regional Crime Lab, testified regarding his
testing of various drugs. Shaffer expressed uncertainty during
his testimony whether “within a reasonable scientific certainty,”
a legal term, was the same or less than “absolute certainty.”
That prompted the trial court to question Shaffer about the
reliability and accuracy of his testing as follows:
{¶ 30} “THE COURT: Believe it or not the Court has a question,
clarification if I might.
{¶ 31} “Earlier, sir, you testified that you weren’t sure –
you had testified that you use some legal terms and you weren’t
sure what they meant. So I want to just clarify some part of your
testimony here.
14
{¶ 32} “You – the testimony that you’ve given regarding the
testing of the cocaine, is it based on your reliable scientific
information?
{¶ 33} “THE WITNESS: Yes, sir.
{¶ 34} “THE COURT: Is the procedure that you use, are the
procedures and testing that you use are those based on objectively
verifiable and widely accepted facts or principles?
{¶ 35} “THE WITNESS: Yes, sir.
{¶ 36} “THE COURT: Is the design of the procedure and the test,
is it reliably, does it reliably implement the three upon which
it’s based?
{¶ 37} “THE WITNESS: Yes, sir.
{¶ 38} “THE COURT: And in this case – particular procedure test
that you did here, was that conducted in a way that yields an
accurate result?
{¶ 39} “THE WITNESS: Yes, sir.
{¶ 40} “THE COURT: And are you reasonably certain of the result
that you got?
{¶ 41} “THE WITNESS: Yes, sir, I am.
{¶ 42} “THE COURT: Okay. Thank you.
{¶ 43} “Does that prompt any questions?
{¶ 44} “MS. PARSON: No, thank you, Your Honor.
15
{¶ 45} “THE COURT: Okay. Mr. O’Brien?1
{¶ 46} “MR. O’BRIEN: No questions.
{¶ 47} “THE COURT: Okay. Thank you very much.” (Trial T. at
727-728.)
{¶ 48} The court questioned Shaffer briefly in order to
ascertain whether his tests were based on reliable scientific
information, if the procedure he used was based on objectively
verifiable and widely accepted scientific principles, if the test
yielded accurate results, and whether Shaffer was reasonably
certain of the results. See Evid.R. 703. The court’s questions,
while leading, were nevertheless impartial and not aimed at
eliciting partisan testimony, but were merely intended to elicit
the facts needed to decide the issue. The trial court did not
demonstrate bias or prejudice for or against either party.
{¶ 49} Defendant’s third assignment of error is overruled.
FOURTH ASSIGNMENT OF ERROR
{¶ 50} “THE JOINDER OF CO-DEFENDANT ANTHONY FRANKLIN
SUBSTANTIALLY PREJUDICED APPELLANT’S DUE PROCESS RIGHT TO A FAIR
TRIAL UNDER THE UNITED STATES CONSTITUTION.”
{¶ 51} Defendant argues that the trial court abused its
discretion and denied him due process and a fair trial by denying
1
Counsel for co-defendant Franklin.
16
his request for a trial separate from that of his co-defendant,
Anthony Franklin.
{¶ 52} In State v. Humphrey, 2nd Dist., Clark App. No. 02CA0025,
2003-Ohio-2825, we stated:
Crim.R. 8(B) governs joinder of defendants and
provides:
“Two or more defendants may be charged in the same
indictment, information or complaint if they are alleged
to have participated in the same act or transaction or
in the same series of acts or transactions constituting
an offense or offenses, or in the same course of criminal
conduct. Such defendants may be charged in one or more
counts together or separately, and all of the defendants
need not be charged in each count.”
Crim.R. 14 provides for relief from prejudicial
joinder and states in relevant part:
“If it appears that a defendant or the state is
prejudiced by a joinder of offenses or of defendants
in an indictment, information, or complaint, or by such
joinder for trial together of indictments, informations
or complaints, the court shall order an election or
separate trial of counts, grant a severance of
defendants, or provide such other relief as justice
17
requires. In ruling on a motion by a defendant for
severance, the court shall order the prosecuting
attorney to deliver to the court for inspection pursuant
to Rule 16(B)(1)(a) any statements or confessions made
by the defendants which the state intends to introduce
in evidence at the trial.”
The decision whether to grant a motion for separate
trials is a matter resting within the trial court's sound
discretion, and a reviewing court will not disturb that
decision on appeal absent a showing that the trial court
abused its discretion. State v. Torres (1981), 66 Ohio
St.2d 340, 421 N.E.2d 1288.
{¶ 53} Defendant and his co-defendant, Anthony Franklin, were
jointly indicted for possessing heroin, possessing criminal tools,
and engaging in a pattern of corrupt activity based upon multiple
acts of possessing and selling crack cocaine and heroin. The
predicate acts/offenses occurred on eight separate occasions
between May 13, 2006 and April 2, 2009. Both Defendant and Franklin
were present during many of these incidents. Joinder was proper
because these defendants participated together in the predicate
acts, and the crimes and these defendants were connected by the
same acts, the same evidence, and the same witnesses. Had
Defendant and Franklin been tried separately, the juries would
18
hear much of the same evidence.
{¶ 54} Defendant argues that he was prejudiced by the joinder
because of the admission of a statement of Franklin’s that
incriminated Defendant, resulting in a Bruton error. Bruton v.
United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).
A Bruton problem arises in a joint trial of two or more defendants
when evidence of a confession or statement by a non-testifying
defendant is admitted that implicates the other defendant(s) in
criminal activity. Id.; Humphrey. Here, the State did not
present at the trial any statements made by Franklin that implicated
Defendant in criminal activity. Therefore, no Bruton problem
arises.
{¶ 55} Furthermore, the evidence presented at trial as to the
predicate offenses was not so complex that the jury was incapable
of segregating the proof as to each defendant. It is clear from
the evidence which of the two defendants participated in which
predicate act. The evidence relating to Defendant Griffin was
clear and direct, and established that Defendant was involved
in the incidents/offenses that occurred on October 16, 2008,
January 22, 2009, March 17, 2009, and April 1, 2009. The trial
court instructed the jury separately on each of these incidents
and instructed the jury to consider each defendant separate from
the other. Defendant and Franklin were properly tried together,
19
and Defendant has failed to demonstrate that he suffered prejudice
as a result of the joinder.
{¶ 56} Defendant’s fourth assignment of error is overruled.
FIFTH ASSIGNMENT OF ERROR
{¶ 57} “THE TRIAL COURT SHOULD HAVE ORDERED A MISTRIAL BASED
UPON PROSECUTORIAL MISCONDUCT.”
{¶ 58} Defendant argues that he was denied a fair trial as a
result of prosecutorial misconduct which included repeatedly
showing the jury a cardboard poster that labeled Defendant and
his co-defendant, Anthony Franklin, as part of a “drug trafficking
group.” We addressed this same argument in the appeal of
Defendant’s co-defendant, Anthony Franklin, and found that it
lacked merit because no prosecutorial misconduct was demonstrated
to the extent that the poster was used not as evidence but rather
for demonstrative purposes only, to help the jury keep track of
the incidents, and the jury was instructed accordingly. State
v. Franklin, 2nd Dist. Montgomery Nos. 24011, 24012,
2011-Ohio-6802. For the reasons stated in our opinion in Franklin,
Defendant’s fifth assignment of error is overruled.
SIXTH ASSIGNMENT OF ERROR
{¶ 59} “THE REMOVAL OF AFRICAN-AMERICAN JURORS BY PEREMPTORY
CHALLENGES VIOLATED APPELLANT’S DUE PROCESS AND EQUAL PROTECTION
RIGHTS, RESULTING IN THE DENIAL OF A FAIR TRIAL.”
20
{¶ 60} Defendant argues that the trial court committed
reversible error when it allowed the State to use peremptory
challenges to dismiss two African-American jurors during voir dire
based upon racial discrimination. We addressed this same
argument in the appeal of Defendant’s co-defendant, Anthony
Franklin, and concluded that it lacked merit because the State
provided race neutral explanations for its dismissal of both
jurors. State v. Franklin, 2nd Dist. Montgomery 24011 and 24012,
2011-Ohio-6802. For the reasons stated in our opinion in Franklin,
Defendant’s sixth assignment of error is overruled. The judgment
of the trial court will be affirmed.
FAIN, J., concurs.
FROELICH, J., concurring:
{¶ 61} “A trial judge ‘need take no vow of silence. He is there
to see that justice is done or at least to see that the jury have
a fair chance to do justice.’ He or she ‘ought to be always the
guiding spirit and the controlling mind at a trial.’” (Citations
omitted.) Commonwealth v. Dias, 373 Mass. 412, 416, 367 N.E.2d
623 (1977). Further, a trial court’s interrogation of a witness
is not deemed partial for purposes of Evid.R. 614(B) merely because
the evidence elicited during the questioning is potentially
damaging to the defendant. State v. Blankenship, 102 Ohio App.3d
21534, 548, 657 N.E.2d 559 (12th Dist.1995).
{¶ 62} At the same time, a judge must keep in mind that the
State has the duty and burden to prove a defendant’s guilt and
should not intentionally fill in gaps in the prosecution’s or
defendant’s case. A judge in our adversary system is not an active
participant in the gathering or prosecution of evidence. See,
e.g., Reamey, Innovation or Renovation in Criminal Procedure: Is
the World Moving Toward a New Model of Adjudication?, 27 Ariz.
J. Int’l & Comp. L. 693, fn. 18 (2010).
{¶ 63} I concur with the majority that, with the record before
us, the judge did not demonstrate bias or abandon his neutral role.
. . . . . . . . . .
Copies mailed to:
Kirsten A. Brandt, Esq.
Kent J. Depoorter, Esq.
Hon. Steven K. Dankof