State v. Ricky Usrey , 351 Mont. 341 ( 2009 )

July 1 2009
DA 08-0050
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 227STATE OF MONTANA,
Plaintiff and Appellee,
v.
RICKY JOE USREY,
Defendant and Appellant.
APPEAL FROM: District Court of the Seventh Judicial District,
In and For the County of Richland, Cause No. DC-99-21
Honorable Katherine M. Irigoin, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jim Wheelis, Chief Appellate Defender; Roberta R. Zenker, Assistant
Appellate Defender, Helena, Montana
For Appellee:
Hon. Steve Bullock, Montana Attorney General; Sheri K. Sprigg,
Assistant Attorney General, Helena, Montana
Mike Weber, Richland County Attorney, Sidney, Montana
Submitted on Briefs: November 26, 2008
Decided: July 1, 2009
Filed:
__________________________________________
Clerk
Justice John Warner delivered the Opinion of the Court.
¶1 Ricky Joe Usrey was convicted by his plea of guilty of the offense of sexual
intercourse without consent. He later moved to withdraw his guilty plea. The Seventh
Judicial District Court, Richland County, denied Usrey’s motion and he appeals.
¶2 Usrey raises the following issues on appeal:
¶3 Issue 1: Did the District Court err in concluding that Usrey’s plea of guilty was
voluntary?
¶4 Issue 2: Did the District Court err in admitting the testimony of Usrey’s former
attorney?
BACKGROUND
¶5 Pursuant to an order transferring the case from Youth Court to District Court, the
State filed an information charging Usrey, who was 17 years old at the time, with sexual
intercourse without consent for forcing himself on a 6-year-old girl.
¶6 Usrey, after a consultation with his appointed counsel, pled not guilty to the
charge on August 17, 1999. Later, again with the advice of counsel, Usrey entered into a
written plea agreement wherein he acknowledged, inter alia, that he waived the right to
have the jury instructed on a lesser offense, that the court was not bound by the State’s
recommendations, and that he could be sentenced to the maximum penalty provided by
law.
¶7 At the continued arraignment, where Usrey changed his plea to guilty, the District
Court confirmed he read through the agreement carefully, went over it with his attorney,
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and understood it. The court outlined the agreement’s waiver of rights provisions and
asked Usrey if he understood the consequences of the agreement. Usrey said he
understood what rights he was waiving and described why he thought he was guilty.
Further details of the plea colloquy are discussed below. The District Court then
committed Usrey to the Montana Department of Corrections (DOC) for placement in an
appropriate facility or program for a period of 15 years, with all but five years of the
commitment suspended. After serving four years at Montana State Prison, Usrey was
released to the suspended portion of his commitment upon the conditions he attend sex
offender treatment, register as a sex offender, notify his probation officer if he changed
his residence, and abstain from alcohol and drugs.
¶8 Several months after his release from prison, the District Court revoked Usrey’s
probation and recommitted him to DOC for ten years with the entire commitment
suspended. A couple of months later, Usrey again violated the conditions of his
probation. As a result, the District Court revoked his DOC commitment and again
recommitted him to DOC for ten years, with all but five years suspended. Usrey then
filed the motion to withdraw his guilty plea at issue in this case. His motion alleged that
he entered his plea involuntarily because he is “mentally retarded” and his attorney failed
to sufficiently explain the plea agreement to him. He alleged he did not understand the
agreement he signed seven years earlier, and the District Court did not adequately explain
to him the rights he was waiving at the continued arraignment.
¶9 The District Court conducted a hearing on Usrey’s motion to withdraw his guilty
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plea. At the hearing, a psychologist retained by Usrey’s attorney to evaluate his “limited
cognitive and academic abilities,” testified Usrey had below average intelligence, with an
IQ of 71, and read at a second-grade level, but is not “mentally retarded.” The
psychologist opined that for Usrey to fully understand the plea agreement, someone
would have to verbally communicate its details to him.
¶10 The State offered the testimony of Thomas Halvorson, the attorney who
represented Usrey during plea negotiations and at the continued arraignment. Usrey
objected to Halvorson testifying on the grounds that it would violate his attorney-client
privilege. The District Court overruled the objection. Halvorson testified that he
explained the plea agreement to Usrey in a series of phone calls, letters, and face-to-face
meetings.
¶11 The District Court denied Usrey’s motion to withdraw his guilty plea, concluding
that Halvorson had sufficiently explained the written plea agreement to him, the
sentencing court’s colloquy with him when he pled guilty was adequate, and Usrey was
mentally competent to enter the guilty plea. Usrey appeals, reiterating his claims that the
plea colloquy was inadequate, that he did not understand to what he was pleading, and
that the District Court erred in relying on the testimony of Halvorson because his
testimony violated the attorney-client privilege.
STANDARDS OF REVIEW
¶12 We review the denial of a motion to withdraw a guilty plea de novo. State v.
Tyler, 2009 MT 75, ¶ 10, 349 Mont. 461, 204 P.3d 685; State v. McFarlane, 2008 MT
418, ¶ 8, 341 Mont. 166, 176 P.3d 1057.
¶13 We accept a district court’s findings of fact on a motion to withdraw a plea, unless
they are clearly erroneous. Findings of fact are clearly erroneous if they are unsupported
by substantial evidence, the district court misapprehended the effect of the evidence, or a
review of the record convinces this Court that the district court made a mistake.
McFarlane, ¶ 8. We review the district court’s conclusions of law for correctness.
McFarlane, ¶ 8.
¶14 We review issues involving the admission of evidence for an abuse of discretion.
State v. Foston, 2009 MT 191, ¶ 10, 351 Mont. 85, ___ P.3d ___.
DISCUSSION
¶15 Issue 1: Did the District Court err in concluding that Usrey’s plea of guilty was
voluntary?
¶16 On appeal, Usrey first claims his plea was not voluntary because when he pled
guilty, the District Court did not advise him of the maximum possible punishment for
sexual intercourse without consent.
¶17 A plea of guilty is constitutionally valid only to the extent it is voluntary and
intelligent. Tyler, ¶ 11; State v. Lone Elk, 2005 MT 56, ¶ 13, 326 Mont. 214, 108 P.3d
500 (citing Bousley v. United States, 523 U.S. 614, 618, 118 S. Ct. 1604, 1609 (1998)).
The ultimate test for withdrawal of a guilty plea is whether it was voluntary. Tyler, ¶ 11;
Lone Elk, ¶ 14. For a defendant’s guilty plea to be voluntary, he must be “‘fully aware of
the direct consequences of the plea, including the value of any commitments made to him
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by the court, the prosecutor or his own counsel.’” Lone Elk, ¶ 21 (quoting Brady v.
United States, 397 U.S. 742, 755, 90 S. Ct. 1463, 1472 (1970)). In our assessment of
voluntariness, we consider the facts of each case, which may include the adequacy of the
court’s interrogation of a defendant who pleads guilty. State v. Swensen, 2009 MT 42, ¶
12, 349 Mont. 268, 203 P.3d 786. For a plea to be voluntary, the defendant must be
mentally competent and able to understand the plea. Lone Elk, ¶ 21. Montana law
requires a district court to determine that a defendant understands certain consequences of
his guilty plea, such as the maximum penalty for the defendant’s crime. Section 46-12-
210(1)(a)(iii), MCA.
¶18 Although the written plea agreement does not state the specific maximum penalty
upon a conviction of sexual intercourse without consent and the District Court did not
state the penalty when Usrey pled guilty, the District Court did ask Usrey if he was
mindful of the maximum penalty for sexual intercourse without consent. He said he was.
The maximum penalty is clearly stated in the information. The transcript of the
continued arraignment indicates that the District Court had previously discussed the
maximum penalty with Usrey, and he does not argue that this is not so. Further, the plea
bargain called for a sentence far less than the maximum penalty. The sentence imposed,
that Usrey bargained for, is far less than the maximum. We conclude Usrey understood
the maximum penalty for sexual intercourse without consent when he pled guilty.
¶19 Usrey next argues that his plea was not voluntary because the District Court did
not advise him at the time he changed his plea to guilty that if it did not accept the plea
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agreement, he might not be allowed to withdraw his plea. Section 46-12-210(1)(d),
MCA, provides:
Before accepting a plea of guilty or nolo contendere, the court shall
determine that the defendant understands . . . that if the defendant pleads
guilty or nolo contendere in fulfillment of a plea agreement, the court is not
required to accept the terms of the agreement and that the defendant may
not be entitled to withdraw the plea if the agreement is not accepted
pursuant to 46-12-211[.]
¶20 Usrey’s plea agreement states that the court is not bound by the plea agreement
and that if Usrey chose to plead guilty, all that remains for the court to do is sentence
him. The District Court advised Usrey that if he pled guilty there would be no trial, and
again reminded him that the court was not bound by the agreement. Usrey was, in
essence, advised that his guilty plea would be final, even if the court did not accept the
sentencing recommendation. The District Court accepted the terms of the plea agreement
and imposed the bargained-for sentence.
¶21 Any variance from the required plea bargain procedure that does not affect the
substantial rights of the defendant must be disregarded. Section 46-12-213, MCA. We
conclude Usrey was not misled to his detriment simply because the District Court did not
tell him, using the exact words of § 46-12-210(1)(d), MCA, that he might not be allowed
to withdraw his guilty plea if the plea bargain was rejected.
¶22 Usrey also argues his plea was involuntary because the District Court did not
advise him that by pleading guilty he waived the right to submit a jury instruction on a
lesser included offense. Usrey argues that even though this Court has not held that sexual
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assault is a lesser included offense, we should do so in this instance. Usrey goes on to
state it is impractical to commit the offense of sexual intercourse without consent upon a
6-year-old because penetration is a required element of the offense. Sections 45-2-
101(66), 45-5-503(1), MCA (1997). Therefore, a jury might find sexual contact but no
penetration, and thus he could have been convicted of sexual assault. Usrey thus argues
the District Court committed reversible error in not advising him that by pleading guilty
he waived his right to submit instructions concerning the lesser included offense of
sexual assault.
¶23 Leaving the question of whether sexual assault is a lesser included offense of
sexual intercourse without consent for another day, Usrey’s argument that he was entitled
to an instruction on sexual assault because penetration of a 6-year-old is impractical, is
nothing short of absurd. The affidavit in support of the motion for leave to file the
information graphically sets forth the required penetration element of sexual intercourse.
Further, Usrey’s statement, noted in ¶ 25, completely debunks his argument.
¶24 In the recent Swensen decision, this Court affirmed a district court’s denial of a
motion to withdraw a guilty plea even though the defendant had not been specifically
advised about possible lesser included offenses because the defendant could not
demonstrate that the factual circumstances warranted a lesser included offense
instruction. Swensen, ¶ 14 (interpreting § 46-16-607(2), MCA). Usrey has completely
failed to demonstrate he would be entitled to a lesser included offense instruction on
sexual assault. Although the facts of this case differ from Swensen, we conclude there is
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no possibility that Usrey would be entitled to an instruction on the lesser included offense
of sexual assault. It follows that because a lesser included offense instruction would not
have been warranted under the facts, any error in the court’s failure to advise Usrey of
such a possibility was harmless.
¶25 Usrey next contends the District Court failed to establish a factual basis for his
guilty plea, as required by § 46-12-212(1), MCA. When he pled guilty, the District Court
asked Usrey what he did that makes him guilty of the offense. Usrey responded:
USREY: Um, whatever the girl said is true, I guess ah, because I mean,
yeah I did take em swimming, yes I did do that, I mean they
said I did.
COURT: When you say you did what they said you did, that doesn’t
really tell me anything, because on the record that’s not real
clear. Tell me what you did.
USREY: Um, I touched my penis to their vagina and all that. Ah they
said I licked em and all that, I did that. Um. That’s all.
COURT: One of the statements alleged that you placed your penis in
the girl’s mouth, did you do that?
USREY: Yes sir.
¶26 Usrey claims on appeal that the factual basis for his plea was not established
because the District Court did not specifically ask whether he acted purposely or
knowingly when he assaulted the child.
¶27 A district court must ascertain from admissions made by the defendant at the plea
colloquy that his acts, in a general sense, satisfy the requirements of the offense to which
he is pleading guilty. However, to establish a factual basis for a guilty plea, a district
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court need not solicit an admission of every element of the offense. State v. Frazier,
2007 MT 40, ¶ 20, 336 Mont. 81, 153 P.3d 18. Section 46-12-212(1), MCA, requires the
court to solicit admissions from a defendant regarding his actions that constitute the
offense charged, which is exactly what the District Court did in this instance. See
Frazier, ¶ 21. We decline Usrey’s invitation to expand our law to require district courts
to specifically solicit an admission of the requisite intent elements of an offense in order
to establish a factual basis for a guilty plea.
¶28 The underlying basis of Usrey’s arguments as to why his guilty plea was
involuntary is his assertion he did not fully understand what he was doing because of his
limited mental capacity. Usrey’s expert witness testified that his deficiencies were in
nonverbal communication and he would understand the plea agreement if it was
explained to him. Before accepting his guilty plea, the District Court asked Usrey:
COURT: And before you signed it did you read through it carefully and
go over it with your attorney?
USREY: Yes, sir.
COURT: Did he answer any questions that you had?
USREY: Yes, sir.
COURT: So you, you understand this agreement?
USREY: Yes, sir.
¶29 The record before this Court contains substantial evidence supporting the District
Court’s conclusion that Usrey was mentally competent to enter a voluntary plea of guilty
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and that he understood the proceedings. The District Court’s factual findings in this
regard are not clearly erroneous.
¶30 Issue 2: Did the District Court err in admitting the testimony of Usrey’s former
attorney?
¶31 Usrey argues the District Court erred in admitting the testimony of his former
attorney, Halvorson, because nothing in the record shows he waived the attorney-client
privilege and the State failed to obtain an order from this Court that Halvorson could
testify and reveal confidential information, as is required by In re Gillham, 216 Mont.
279, 282, 704 P.2d 1019, 1021 (1985), and modified by Marble v. State, 2007 MT 98, ¶
4, 337 Mont. 99, 169 P.3d 1148.
¶32 The District Court denied Usrey’s motion to withdraw his guilty plea after
concluding his plea was voluntary. The District Court found there was no evidence the
plea was induced by threats or promises, misrepresentation, or unfulfilled promises.
Further, the court concluded Usrey was mentally competent to plead guilty and was not
taking any medication rendering him mentally incompetent. While recognizing Usrey
had a below average intelligence, the court concluded he was not “mentally retarded.”
¶33 The District Court’s findings of fact, as well as its ultimate conclusion that Usrey’s
guilty plea was voluntary, are supported by the record without reference to Halvorson’s
testimony. Usrey himself verbally confirmed he went over the agreement with his
attorney, his attorney answered his questions, and he understood the agreement.
Disregarding Halvorson’s testimony, the record contains substantial evidence supporting
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the ultimate conclusion that Usrey’s plea was voluntary. Thus, we need not decide
whether the District Court erred in admitting Halvorson’s testimony.
CONCLUSION
¶34 The District Court did not err in denying Usrey’s motion to withdraw his guilty
plea.
¶35 Affirmed.
/S/ JOHN WARNER
We Concur:
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE
/S/ BRIAN MORRIS
Justice James C. Nelson concurs.
¶36 I concur as to Issue 1. I concur as to Issue 2, but write separately to express my
concern about the State’s argument and the trial court’s approach in this case.
¶37 I begin by noting that Usrey did not allege ineffective assistance of counsel in this
case. He objected to his counsel testifying against him at the hearing on his motion to
withdraw his guilty plea on the basis of his attorney-client privilege. The State argued
that Usrey waived this privilege by filing a motion to withdraw his guilty plea. While
this Court avoids the State’s argument and the problem of Usrey’s attorney testifying
against his client, I believe that the trial court erred, nonetheless, in ordering Halvorson to
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testify.
¶38 Under the State’s view, if a criminal defendant moves to withdraw his guilty plea,
by implication, he waives his attorney-client privilege. The defendant’s attorney can
voluntarily testify or can be compelled to testify and provide the prosecution privileged,
confidential communications, and advice, to be used against defense counsel’s client. I
cannot agree with this approach.
¶39 The attorney-client privilege is provided for by statute as follows:
Attorney-client privilege. (1) An attorney cannot, without the
consent of his client, be examined as to any communication made by the
client to him or his advice given to the client in the course of professional
employment.
Section 26-1-803, MCA. The law is well established that “[a]bsent a voluntary waiver or
an exception, the privilege applies to all communications from the client to the attorney
and to all advice given to the client by the attorney in the course of the professional
relationship.” Palmer by Diacon v. Farmers Ins., 261 Mont. 91, 108-09, 861 P.2d 895,
906 (1993) (citing Kuiper v. Dist. Ct. of the Eighth Judicial Dist., 193 Mont. 452, 461,
632 P.2d 694, 699 (1981)); see also § 26-1-803, MCA.
¶40 A criminal defendant may waive the attorney-client privilege. However,
[w]aiver is defined as the intentional or voluntary relinquishment of a
known right or conduct which implies relinquishment of a known right.
Kuiper v. District Court (1981), 632 P.2d 694, 698, 38 St. Rep. 1288. The
burden of establishing waiver of the privilege is on the party seeking to
overcome the privilege. Miller v. Dis. Ct. City and Cty. of Denver (Colo.
1987), 737 P.2d 834, 838. Two elements must be considered when a court
reviews the waiver of an attorney-client privilege: (1) the element of a
client’s implied intention and (2) the element of fairness and consistency.
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See, 8 Wigmore, Evidence § 2327 at 636; State v. Balkin (1987), 48 Wash.
App. 1, 737 P.2d 1035, 1037.
An implied waiver must be supported by evidence showing that
defendant, by words or by conduct, has impliedly forsaken his privilege of
confidentiality with respect to the communication in question. Miller [],
737 P.2d at 838.
State v. Statczar, 228 Mont. 446, 452-53, 743 P.2d 606, 610-11 (1987).
¶41 The State’s argument and the trial court’s approach turn Statczar on its head. In
that case, this Court reversed the defendant’s conviction when an attorney testified
against his former client. We held, among other things, that the State presented no
evidence that Statczar intended to waive his right not to divulge his privileged
information, and that fairness and consistency coupled with the lack of evidence that
defendant intended to waive the privilege required reversal of defendant’s conviction.
Statczar, 228 Mont. at 453, 743 P.2d at 611.
¶42 Statczar set forth a two-part test on which to gauge whether the defendant had
impliedly waived his attorney-client privilege. First, there must be evidence showing that
the defendant by words or conduct impliedly renounced his privilege of confidentiality
with respect to the communication in question. And, second, the waiver must be
consistent with concerns of consistency and fairness. Statczar, 228 Mont. at 453, 743
P.2d at 610-11 (citations omitted). With regard to this second prong, we took into
consideration that Statczar had no prior contact with the judicial system; that his mental
14
capacity was questionable;1 that he was unfamiliar with courtroom procedure; and that it
was inherently unfair to require him to object to his attorney’s testimony to prevent his
statements from being used against him. Statczar, 228 Mont. at 453, 743 P.2d at 611.
¶43 Here, Usrey was not asked if he waived his privilege. Indeed, the record reflects
that it was not his intent to do so—he objected to his attorney using his privileged
communications against him. Furthermore, Usrey had an IQ of 71—even lower than
Statczar’s IQ of 75. Dr. Tim Casey, the psychologist referred to in the Opinion, ¶ 9,
testified that Usrey was functioning in the borderline range; that he had a “markedly sub-
average” ability to form concepts and deal with words; and that he had shortcomings with
his auditory memory and visual alertness. As the Court itself observes, Usrey had only
limited cognitive and academic abilities; he could only read at a second-grade level; and
to fully understand the plea agreement, someone would have to verbally communicate its
details to him. Opinion, ¶ 9.
¶44 It was the State’s burden to show waiver. Statczar, 228 Mont. at 452, 743 P.2d at
610. The State claimed only that the former public defender had a waiver signed by
Usrey—this purported written waiver was never placed in evidence, however. Moreover,
the attorney testified that the waiver was limited, providing authorization for disclosure to
Usrey’s current counsel. Notwithstanding, the court summarily overruled Usrey’s
objection. The record in this case is devoid of evidence that Usrey, by his words or
1
Statczar had an IQ of 75 and was functioning at a “borderline level.” Statczar, 228
Mont. at 451, 743 P.2d at 609.
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conduct, impliedly intended to waive his attorney-client privilege. The evidence is
directly contrary. And, considerations of consistency and fairness are totally against any
notion of waiver. The State failed in its burden to prove either prong of the Statczar test.
Usrey did not expressly or impliedly waive his attorney-client privilege.
¶45 While the instant case is not a post-conviction-relief proceeding, we adopted a
petition/order procedure in Petition of Gillham, 216 Mont. 279, 281, 704 P.2d 1019,
1020, permitting defense counsel to testify against his client in a post-conviction-relief
proceeding where the defendant alleged ineffective assistance of counsel. We stated in
Gillham that in such a situation, “the Attorney General shall first apply to this Court for
an order preserving such responding attorney from charges of discipline or malpractice
for revealing necessary confidential information from such convicted person.” Gillham,
216 Mont. at 282, 704 P.2d at 1021. However, we also stated that this applied to
“petitions for relief of any kind . . . based in whole or in part on grounds of ineffective
assistance of counsel . . . .” Gillham, 216 Mont. at 282, 704 P.2d at 1021 (emphasis
added). This is incredibly broad language, and that, along with the fact that the attorney-
client privilege is protected by statute without such an exception, leads me to now
conclude that our decision in Gillham was a mistake.
¶46 Indeed, in a form of “function creep”2 the Gillham decision is now being cited for
2
“Function creep” refers to the “expansion of a program, system or technology into
areas for which it was not originally intended,” and the “nearly impossible to stop . . .
slippery slope toward ever broader law enforcement use” of new surveillance technology
once it is installed. Clifford S. Fishman & Ann T. McKenna, Wiretapping and
16
and being used in ways not originally contemplated. Gillham has been, for years, limited
to post conviction/ineffective assistance of counsel claims. 3 Here, however, the State
cites Gillham as authority in a motion to withdraw a guilty plea case. And, in State v.
Patrick, 2009 MT 220N, Supreme Court Cause No. DA 08-0197, the Gillham procedure
was utilized in a judge-disqualification claim. It appears that Gillham is on the slippery
slope. The State is now promoting and using Gillham as a convenient and
comprehensive tool for breaching the defendant’s attorney-client privilege when doing so
will aid it in the prosecution of the State’s case—and, unfortunately, the trial courts and
defense counsel are allowing this to happen. I cannot agree with this approach.
¶47 Gillham effectively destroys the attorney-client privilege in criminal cases.
Gillham judicially repeals § 26-1-803, MCA, in which the Legislature provided that “[a]n
attorney cannot, without the consent of his client, be examined as to any communication
made by the client to him or his advice given to the client in the course of professional
employment [emphasis added].” To the contrary, Gillham decrees that in criminal cases
an attorney can, without the consent of his client, be examined as to any communication
made to him or his advice given to the client in the course of professional employment as
long as there is any kind of claim based in whole or in part on the grounds of ineffective
Eavesdropping § 31:20 (April 2009). Function creep is precisely what is happening with
the Gillham procedure.
3
See Heath v. State, 2009 MT 7, 348 Mont. 361, 202 P.3d 118; Marble v. State, 2007
MT 98, 337 Mont. 99, 169 P.3d 1148; Watson v. State, 2004 MT 308N, 325 Mont. 403,
106 P.3d 132; Bone v. State, 284 Mont. 293, 944 P.2d 734 (1997); State v. Baker, 272
Mont. 273, 901 P.2d 54 (1995).
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assistance of counsel. Moreover, Gillham effectively annuls Montana Rule of
Professional Conduct 1.6, regarding confidentiality, and deals the fundamental right to
counsel guaranteed under the Fifth and Sixth Amendments to the United State’s
Constitution and Article II, Section 24 of the Montana Constitution, a monstrous wound.
¶48 The fundamental purpose of the attorney-client privilege is:
to enable the attorney to provide the best possible legal advice and
encourage clients to act within the law. The privilege furthers this purpose
by freeing clients from the consequences or the apprehension of disclosing
confidential information, thus encouraging them to be open and forthright
with their attorneys.
Palmer, 261 Mont. at 106, 861 P.2d at 904 (citations omitted). Additionally, the
attorney-client privilege fosters the attorney-client relationship by ensuring that attorneys
are free to give accurate and candid advice without fear that the advice will later be used
against the client. Palmer, 261 Mont. at 107, 861 P.2d at 904-05.
¶49 The State’s argument and the trial court’s approach in this case abrogate all of
these important purposes and policies. I cannot agree that the attorney-client privilege
should be discarded so cavalierly.
¶50 With those caveats as to Issue 2, I otherwise concur in the Court’s Opinion.
/S/ JAMES C. NELSON
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