David Scott Winfrey v. State of Tennessee ( 2013 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs January 16, 2013
DAVID SCOTT WINFREY v. STATE OF TENNESSEE
Direct Appeal from the Criminal Court for Sumner County
No. 819-2007, 848-2007, 41-2008 Dee David Gay, Judge
No. M2012-01148-CCA-R3-CO-Filed July 30, 2013
On April 10, 2008, the petitioner entered a no contest plea to twenty-nine Class A
misdemeanors consisting of one count of aggravated criminal trespass, one count of stalking,
thirteen counts of harassment, and fourteen counts of violation of an order of protection.
State v. Winfrey (Winfrey II), No. M2009-02480-CCA-R3-CD, 2010 WL 4540288, at *1-2
(Tenn. Crim. App. Nov. 10, 2010). The petitioner was ultimately sentenced to eleven months
and twenty-nine days for each conviction, with ten of the sentences to be served
consecutively for an effective sentence of just under ten years. The trial court ordered three
of the consecutive sentences to be served in confinement and the remaining seven to be
served on probation. The petitioner was arrested on December 8, 2010, during the pendency
of his appeal; and after a hearing held in April 2011, the trial court revoked the petitioner’s
probation and ordered him to serve his remaining seven consecutive eleven-month-twenty-
nine-day sentences in confinement. The petitioner did not file a direct appeal. Instead, on
March 15, 2012, the petitioner filed a motion to serve the balance of his sentence on
probation. In the alternative, the petitioner sought to have the court set aside the probation
revocation pursuant to the writ of error coram nobis based on the expunction of the record
of his December 2010 arrest due to a stay of probation in effect at the time. The trial court
denied both the motion to serve the remaining sentence on probation and the petition for the
writ of error coram nobis, as well as an oral motion for the judge’s recusal. The petitioner
appeals. After a thorough review of the record, we find no error and accordingly affirm the
judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
P AUL G. S UMMERS, S R. J., delivered the opinion of the Court, in which J OSEPH M. T IPTON,
P.J., and J AMES C URWOOD W ITT, J R., J., joined.
William Bart Highers and Jason B. Elliott, Gallatin, Tennessee (at hearing); and David Scott
Winfrey, Gallatin, Tennessee, Pro Se (on appeal) for the appellant, David Scott Winfrey.
Robert E. Cooper, Jr., Attorney General & Reporter; Sophia S. Lee, Senior Counsel; L. Ray
Whitley, District Attorney General; and Bryna Grant, Assistant District Attorney General,
for the appellee, State of Tennessee.
OPINION
I. Factual and Procedural History
The petitioner’s twenty-nine misdemeanor convictions were the result of an abusive
romantic relationship with the victim. On April 23, 2007, the victim obtained an order of
protection against the petitioner. Following numerous violations of the order on numerous
dates, the petitioner entered a no contest plea to the twenty-nine Class A misdemeanors listed
above. Winfrey II, 2010 WL 4540288, at *1-2. The trial court initially ordered ten counts
of the violation of an order of protection to run consecutively for an effective ten-year
sentence. On direct appeal, it was determined that the trial court improperly relied on
Tennessee Code Annotated section 39-13-113(g), and the case was remanded for
resentencing. State v. Winfrey (Winfrey I), No. M2008-01429-CCA-R3-CD, 2009 WL
2486180, at *4 (Tenn. Crim. App. Aug.14, 2009).
On October 30, 2009, the trial court again imposed sentences of eleven months and
twenty-nine days for each conviction, with ten of the sentences to be served consecutively
for an effective sentence of ten years. Winfrey II, 2010 WL 4540288, at *2. The trial court
based the sentence on its finding that the petitioner had an extensive history of criminal
activity, citing the fact that the defendant actually violated the court’s order 1,270 times by
placing 185 calls to the victim’s home, 224 calls to her work, and 861 calls to her cell phone,
all while incarcerated. Id. at *4. The trial court ordered three of the petitioner’s sentences
to be served in prison and the remaining seven to be served on probation. Id. at *2. On the
judgment sheets for the sentences to be served on probation, the trial court imposed as a
condition of probation that the petitioner have absolutely no contact with the victim. The
appellant filed a timely appeal. Id.
The appellate decision upholding the sentencing was entered pursuant to Tennessee
Rule of Appellate Procedure 38 on November 10, 2010. However, the mandate was not
issued until February 22, 2011. See Tenn. R. App. P. 42. Meanwhile, on December 8, 2010,
a warrant charging the petitioner with a violation of his probation was issued. The
defendant’s probation officer characterized the violation as “Violation Rule #1: Not violate
any law. Client has been charged with Aggravated Assault against [the victim] with whom
he had an ABSOLUTELY NO CONTACT ORDER.”
On April 11 and 18, 2011, the trial court heard evidence and arguments on the
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defendant’s probation violation. The victim testified that the petitioner was released from
jail in November 2009 and that he first had contact with her around the first of December
2009. During this time, the petitioner’s appeal from his resentencing was pending. The
victim first noticed the petitioner at a gas station near her workplace where she frequently
stopped in the mornings. The petitioner waved her down, and she stopped her car and spoke
briefly to him. Thirty minutes later, he called her at her work, where the phone system did
not allow her to identify the origin of incoming calls. The petitioner continued to call her at
work that day and for several days thereafter, then urged her to meet him because he feared
he would “get in trouble” for contacting her by phone; she agreed. The victim testified that
on the day she first saw the petitioner or the next day, she contacted a detective in Sumner
County and then the petitioner’s probation officer regarding the contact he had with her. She
“was told [she] would have to start from fresh and with new charges for anything to be
done,” because the no contact order was part of the probationary sentence and the probation
was stayed during the pendency of the petitioner’s appeal. She also testified that at some
point, she contacted the District Attorney’s office regarding the petitioner’s contacting her.
Having ascertained that she could expect no immediate help from the criminal justice
system, she continued to have contact with the petitioner in 2010, with the exception of a
period from mid-January to March. The petitioner convinced the victim that he had dealt
with his anger issues, and they resumed a relationship. The victim testified that the petitioner
assaulted her in May 2010 in Robertson County1 and that in June 2010 the petitioner became
angry that she would not answer the phone, drove to her home in Kentucky, and assaulted
her there. On December 8, 2010, the victim was living in Tennessee; and the defendant had
contacted her to say that he had some of her property at his house. The victim asked him to
take it to her brother’s home, and he refused. Eventually, she arranged to pick it up on his
back porch while he was out. When she arrived the items were not there, but she could hear
the petitioner in the house. She knocked multiple times, and the petitioner opened the door
and pulled her into the house. The petitioner assaulted her, threatened to rape her, punched
her in the eye, and choked her until she could not breathe. The petitioner then apologized
and said, “Look what you made me do.” While the petitioner went to the kitchen, the victim
escaped to her car and called 911. The victim’s testimony from the preliminary hearing on
the aggravated assault charge, which was consistent with her testimony at the probation
revocation hearing, was introduced into evidence at the revocation hearing.
The defense argued against revocation based on the fact that the petitioner was not on
probation at the time of the alleged assault and that the no contact order was not in place,
averring that the sentence, including the probation and its terms and conditions, was
1
The victim testified that she notified authorities in Robertson County in May 2010 after the
petitioner assaulted her in a vehicle, and nothing was done, “[s]o eventually I gave up.”
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suspended pending his appeal. The trial court found that the petitioner had committed an
assault when he punched the victim in the eye. The trial court further determined that the
petitioner had, in violation of Tennessee Code Annotated section 39-13-113, disregarded an
oral order in which the court ordered the defendant to have no contact with the victim, and
that the petitioner had violated the no contact order which was part of the judgment sheet.2
The trial court revoked the petitioner’s probation on these bases and ordered him to serve the
remaining seven consecutive eleven-month-twenty-nine-day sentences in confinement.3 The
petitioner did not file a direct appeal.
On July 7, 2011, the trial judge recused himself from the case which charged the
petitioner with aggravated assault based on the fact that, as part of the probation revocation
hearing, the trial court had made certain credibility determinations regarding the victim’s
testimony and that these could lead to an appearance of impropriety in a trial based on the
same factual allegations and same testimony. The case was transferred to another judge and
on January 25, 2012, the Sumner County Criminal Court entered an order dismissing the
charges against the petitioner. The petitioner had apparently been indicted pursuant to
Tennessee Code Annotated section 39-13-102(c), which requires the defendant to have been
“enjoined or restrained by an order, diversion, or probation agreement.” Because the
defendant’s probation was suspended during the pendency of his appeal and the no contact
order was tied to the probation, the trial court found that there was no protection order in
place and dismissed the case.4 An order to expunge the record of the charges was issued on
February 28, 2012.
On March 15, 2012, the petitioner filed his motion to serve his remaining sentence on
probation pursuant to Tennessee Code Annotated section 40-35-306(c) and, in the
alternative, a coram nobis petition. The petitioner based the petition for coram nobis on the
recent dismissal of the warrant and expunction of his record. During the April 13, 2012
hearing, the petitioner also made an oral motion for the trial judge to recuse himself. The
trial court specifically found that it had no actual “bias” and likewise found no appearance
of impropriety. The trial court found that the petitioner had shown no change in
circumstances, no remorse, and no indication that he would respect the law. The trial court
cited the petitioner’s prior disregard for the orders of the court and found that there was
2
The date and substance of this order is not a part of the record.
3
The trial court made an oral ruling revoking the petitioner’s probation from the bench on April 18,
2011 and filed an order revoking the probation on June 13, 2011.
4
During the April 13, 2012 hearing, the State represented that it had elected not to pursue a domestic
assault charge upon dismissal, while the petitioner in his appellate brief alleged that the trial court had denied
the State the opportunity to proceed.
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“absolutely nothing to show that anything has changed other than the fact that he’s been in
jail and he wants out.” The trial court also found that the dismissal of the aggravated assault
charge was irrelevant to its finding that the defendant had committed the crime of assault
which was the basis for revocation. On April 24, 2012, the trial court issued a written order
denying both the motion and the petition.
The petitioner filed a notice of appeal on May 15, 2012. Subsequently, on June 29,
2012, the petitioner filed a Motion for Recusal. The trial court held a hearing on the Motion
for Recusal on July 16, 2012, during which the petitioner also requested credit for serving
his sentence on probation during the pendency of his appeal. The State argued that he had
not been on probation and therefore was not entitled to credit. The trial court denied the
motion, determining in its July 27, 2012 written order that there was no objective or
subjective basis for recusal and noting that it had also denied the petitioner’s first motion to
recuse, which was the subject of an appeal. The judge also noted that he had, after ruling on
the motion, discovered that the petitioner had filed a complaint against him with the
Tennessee Board of Judicial Conduct and that the Board had dismissed the complaint. On
July 30, 2012, the petitioner requested this Court to allow an expedited appeal of the Motion
for Recusal. This Court filed an order on August 17, 2012, allowing the petitioner to raise
the recusal issues in his appellate brief.
On appeal, the petitioner asserts that the court erred in denying his request to serve the
remainder of his sentence on probation, alleging that the original revocation was in error due
to the fact that his probation was not in effect during the pendency of his appeal. He also
asserts that the court erred in denying his petition for a writ of error coram nobis based on
the expunction of the record of his arrest for aggravated assault. Finally, he asserts that the
trial judge erred in refusing to recuse himself.
II. Analysis
A. Denial of Motion to Serve Remaining Sentence on Probation
The petitioner petitioned the court to allow him to serve the remainder of his sentence
on probation pursuant to Tennessee Code Annotated section 40-35-306(c), which provides:
At any time during the period of continuous confinement
ordered pursuant to this section, the defendant may apply to the
sentencing court to have the balance of the sentence served on
probation supervision. The application may be made at no less
than two-month intervals.
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A trial court’s denial of an application to suspend the balance of a petitioner’s sentence is
reviewed for abuse of discretion. State v. Ruiz, 204 S.W.3d 772, 776 (Tenn. 2006). Such a
ruling, like a denial of a motion to reduce a sentence under Tennessee Rule of Criminal
Procedure 35, “is not the equivalent of imposing a sentence but simply reaffirms the sentence
previously imposed.” Id. at 777. An abuse of discretion occurs when the trial court has
applied an incorrect legal standard, or has reached a decision which is illogical or
unreasonable and causes an injustice to the party complaining. State v. Ostein, 293 S.W.3d
519, 526 (Tenn. 2009). In determining whether to suspend a sentence, the court must decide
“whether post-sentencing information or developments have arisen that warrant an alteration
in the interest of justice.” Ruiz, 204 S.W.3d at 778; see also State v. McDonald, 893 S.W.2d
945, 947 (Tenn. Crim. App. 1994) (noting that under Tennessee Rule of Criminal Procedure
35, a negotiated sentence may be reevaluated “where unforeseen, post-sentencing
developments would permit modification of a sentence in the interest of justice”).
Tennessee Code Annotated section 40-35-306(c) applies “where a defendant is
sentenced to confinement in a local jail or workhouse for no greater than one year followed
by a period of probation (‘split confinement’).” Ruiz, 204 S.W.3d at 776. Here, the
petitioner’s probation was revoked, and he was no longer serving a split sentence. However,
Tennessee Code Annotated section 40-35-314(c) similarly provides:
The court shall retain full jurisdiction over the defendant during
the term of the sentence and may reduce or modify the sentence
or may place the defendant on probation supervision where
otherwise eligible. Following the first application, applications
to reduce or to alter the manner of the service of the sentence
may be made at no less than two (2) month intervals.
The Court in Ruiz noted that its analysis regarding the review of a decision to deny an
application to suspend the remainder of a sentence applied equally to this provision. Ruiz,
204 S.W.3d at 776 n.3; see also State v. Lewis, No. M2007-00610-CCA-R3-CD, 2008 WL
1891438, at *4 (Tenn. Crim. App. Apr. 29, 2008) (concluding there must be “unforeseen
post-sentencing facts” to alter, a sentence negotiated pursuant to a guilty plea. Tennessee
Code Annotated section 40-35-314(c)).
In the case at bar, the trial court found that the petitioner had shown no new post-
sentencing facts and that in particular, that the petitioner had not shown remorse or any
indication that he would follow the orders of the court. While the petitioner alleges that the
dismissal of the aggravated assault charge against him is a post-sentencing fact necessitating
suspension of his sentence, the trial court found this irrelevant to its determination that the
petitioner had assaulted the victim. The petitioner, both while in jail and during his
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subsequent release, has doggedly and relentlessly ignored court orders and continued to
contact the victim. The trial court found that he violated an order 27 times from jail by
telephoning the victim. The victim testified that the petitioner assaulted her three times
during the pendency of his appeal, when the court-ordered protection which had provided her
with some modicum of safety lapsed. We conclude that the trial court did not abuse its
discretion in finding that an alteration of the petitioner’s sentence was not in the interest of
justice.
B. Writ of Error Coram Nobis
While the petitioner asserts he is entitled to coram nobis relief, the State alleges he has
abandoned this claim on appeal. Because a pro se litigant is held to less stringent standards
and because the petitioner’s brief does allege that he is entitled to relief under the writ of
error coram nobis based on the expunction of his arrest, we will address the claim.5 See Allen
v. State, 854 S.W.2d 873, 875 (Tenn. 1993).
“[A]n extraordinary remedy known more for its denial than its approval,” State v.
Mixon, 983 S.W.2d 661, 666 (Tenn. 1999), a writ of error coram nobis may be granted
according to the sound discretion of the trial court; and its denial is reviewed for abuse of
discretion, Wilson v. State, 367 S.W.3d 229, 235 (Tenn. 2012). A writ of error coram nobis
is available “for subsequently or newly discovered evidence relating to matters which were
litigated at the trial if the judge determines that such evidence may have resulted in a
different judgment, had it been presented at the trial.” T.C.A. § 40-26-105(b). The writ may
issue only where the petitioner was without fault in failing to present the evidence at the
proper time. Id. The writ is also “confined to errors dehors the record and to matters that
were not or could not have been litigated on the trial of the case, on a motion for a new trial,
on appeal in the nature of a writ of error, on writ of error, or in a habeas corpus proceeding.”
Id.
“In order to be considered ‘newly discovered evidence,’ the proffered evidence must
be (a) evidence of facts existing, but not yet ascertained, at the time of the original trial, (b)
admissible, and (c) credible.” Harris v. State, 301 S.W.3d 141, 152 (Tenn. 2010) (Koch and
Clark, JJ., concurring) (footnotes omitted); see also id. at 152 n.12 (citing cases). In
determining whether the evidence may have led to a different result, the court should
consider “‘whether a reasonable basis exists for concluding that had the evidence been
presented at trial, the result of the proceedings might have been different.’” State v. Vasques,
221 S.W.3d 514, 527 (Tenn. 2007) (quoting State v. Vasques, No. M2004-00166-CCA-R3-
5
In so far as the petitioner seeks review of the trial court’s revocation of his probation, his failure
to appeal that decision within the appropriate time frame precludes our review.
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CD, 2005 WL 2477530, at *13 (Tenn. Crim. App. Oct. 7, 2005)).
We conclude that the expunction of the petitioner’s aggravated assault charge does
not fit the definition of “newly discovered evidence” in that it was not “existing, but not yet
ascertained, at the time of the original trial.”6 Harris, 301 S.W.3d at 152 (Koch and Clark,
JJ., concurring). Clearly, the expunction did not yet exist. Insofar as the petitioner asserts
that the “newly discovered evidence” is the fact that his sentence was stayed pending his
appeal and that the no contact order, which was linked to his probation, was not in effect, this
is an issue that was thoroughly litigated at the revocation hearing. The petitioner chose not
to appeal the outcome of that hearing and cannot now complain regarding the trial court’s
determination.7 See T.C.A. § 40-35-311(e)(2).
Furthermore, as the trial court found, knowledge of the expunction would not, at any
rate, have changed the trial court’s determination. While the State would have to prove the
elements of the offense of aggravated assault beyond a reasonable doubt in order to convict
the petitioner of the charge, the trial court had the power to revoke the petitioner’s probation
upon finding by a preponderance of the evidence that the terms of the probation were
violated. T.C.A. § 40-35-311(e)(1). Because this is a lesser burden of proof, it is entirely
possible that conduct that could serve as the basis for a probation revocation would
nevertheless fail to result in a conviction.
We conclude that the trial court did not abuse its discretion in denying the petition
because the petitioner failed to show that the evidence was newly discovered or that the
evidence may have resulted in a different judgment.
6
We note that the writ of error coram nobis applies to matters that were not or could not have been
litigated “on the trial of the case.” T.C.A. § 40-26-105(b) (emphasis added). While our Supreme Court has
held that a guilty plea is a “trial” within the meaning of the statute, we find no case deciding whether a
probation revocation hearing is a “trial” whose errors are subject to the remedy provided by the writ. See
Wlodarz v. State, 361 S.W.3d 490, 502-04 (Tenn. 2012) (examining various definitions for “trial”).
However, given our conclusion that the petitioner has alleged no newly discovered evidence within the
meaning of the statute and that the trial court did not err in finding that the evidence would not have changed
the outcome of the determination, we pretermit this issue.
7
We further note that, although the petitioner is correct that the trial court lost jurisdiction upon the
filing of the appeal, “a trial court c[an] appropriately consider a probation revocation warrant based on a
criminal offense committed during appeal after completion of the appeal and return of jurisdiction to the trial
court.” State v. Adkisson, Nos. M2000-01079-CCA-R3-CD, M2000-02319-CCA-R3-CD, 2001 WL 1218570,
at *10 (Tenn. Crim. App. Oct. 12, 2001). This is exactly what the trial court did, finding, after the mandate
was issued, that the defendant violated his probation because “an obligation not to commit a criminal
violation is so inherently and patently a requirement of our citizens that it attaches to any grant of probation
and... probationers, whether they be present or future, are put on notice, as a matter of law, that further
criminal acts may result in revocation.” State v. Stone, 880 S.W.2d 746, 749 (Tenn. Crim. App. 1994).
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C. Recusal
The petitioner also asserts that the trial judge erred in refusing to recuse himself,
contending that the judge’s decision to recuse himself from hearing the aggravated assault
case was an acknowledgment of bias against the petitioner.
A fair trial before an impartial tribunal is a fundamental constitutional right. State v.
Austin, 87 S.W.3d 447, 470 (Tenn. 2002). A judge is not competent to preside over a case
in which the judge “may be interested, or where either of the parties shall be connected with
him by affinity or consanguinity, within such degrees as may be prescribed by law, or in
which he may have been of counsel, or in which he may have presided in any inferior Court.”
Tenn. Const. art VI, § 11; see also T.C.A. § 17-2-101(5) (further disqualifying a judge who
is connected to the victim of a felony). “As a matter of custom and law, recusal decisions
are made by the trial judge himself or herself.” State v. Hester, 324 S.W.3d 1, 72 (Tenn.
2010). The trial court’s ruling on a motion for recusal where recusal is not mandated under
the Tennessee Constitution or Tennessee Code Annotated section 17-2-101 is reviewed for
abuse of discretion. Id., at 13. Relief will only be granted when the trial court has applied
an incorrect legal standard or has reached an illogical or unreasonable decision which causes
an injustice to the complaining party. Bean v. Bailey, 280 S.W.3d 798, 805 (Tenn. 2009).
Under Tennessee Supreme Court Rule 10, Canon 3(E)(1):
A judge shall disqualify himself or herself in a proceeding in
which the judge’s impartiality might reasonably be questioned,
including but not limited to instances where:
(a) the judge has a personal bias or prejudice concerning a party
or a party’s lawyer, or personal knowledge of disputed
evidentiary facts concerning the proceeding;
(b) the judge served as a lawyer in the matter in controversy, or
a lawyer with whom the judge previously practiced law served
during such association as a lawyer concerning the matter, or the
judge has been a material witness concerning it;
(c) the judge knows that he or she, individually or as a fiduciary,
or the judge’s spouse, parent, or child wherever residing, or any
other member of the judge’s family residing in the judge’s
household, has an economic interest in the subject matter in
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controversy or in a party to the proceeding or has any other more
than de minimis interest that could be substantially affected by
the proceeding;
(d) the judge or the judge’s spouse, or a person within the third
degree of relationship to either of them, or the spouse of such a
person:
(i) is a party to the proceeding, or an officer, director or
trustee of a party;
(ii) is acting as a lawyer in the proceeding;
(iii) is known by the judge to have a more than de
minimis interest that could be substantially affected by the
proceeding;
(iv) is to the judge’s knowledge likely to be a material
witness in the proceeding.
This Rule was in effect until July 1, 2012, when it was replaced by Tennessee Supreme Court
Rule 10, Rules of Judicial Conduct 2.11. See also Sup. Ct. R. 10B (2012).
Tennessee employs an objective standard for determining the propriety of recusal.
Alley v. State, 882 S.W.2d 810, 820 (Tenn. Crim. App. 1994). “‘[T]he preservation of the
public’s confidence in judicial neutrality requires not only that the judge be impartial in fact,
but also that the judge be perceived to be impartial.’” Bd. of Prof’l Responsibility of the Sup.
Ct. of Tenn. v. Slavin, 145 S.W.3d 538, 548 (Tenn. 2004) (quoting Kinard v. Kinard, 986
S.W.2d 220, 228 (Tenn. Ct. App. 1998)). Thus, recusal is necessary “when a person of
ordinary prudence in the judge’s position, knowing all of the facts known to the judge, would
find a reasonable basis for questioning the judge’s impartiality.” Alley, 882 S.W.2d at 820.
However, adverse rulings by a trial judge, “even if erroneous, numerous and continuous,” do
not necessarily require disqualification. Id. at 821.
In this case, the trial court decided to recuse itself from the petitioner’s aggravated
assault case based on the objective standard detailed above. The trial court, while noting that
it had no actual bias, reasoned that its credibility determinations in favor of the victim during
the revocation hearing could create an appearance of partiality in the aggravated assault case,
which was based on the same facts and which required making the same credibility
determinations.
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However, the issues raised by the petitioner’s March 15, 2012 filings were completely
distinct from the issues which the trial court had determined to recuse itself from deciding.
The victim’s credibility is not determinative of the issues raised in these later filings. The
trial court in the instant application was required to determine: (1) whether post-sentencing
information or developments had arisen that warranted an alteration of the sentence in the
interest of justice and (2) whether the petitioner could point to any newly discovered
evidence which merited coram nobis relief. The petitioner provides no basis for questioning
the impartiality of the trial court regarding its ability to determine these issues. Accordingly,
the trial court did not abuse its discretion in denying the motion to recuse.
III. Conclusion
Because the appellant has not shown that the trial court abused its discretion in
denying his motion to suspend his sentence, in denying his petition for coram nobis relief,
and in declining to recuse itself, we affirm the judgments of the trial court.
________________________________
PAUL G. SUMMERS, Senior Judge
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