PEOPLE v ALLEN
Docket No. 318560
310 MICH APP 328
April 30, 2015
Submitted February 11, 2015, at Grand Rapids. Leave to appeal granted 498 Mich ___.
Floyd Phillip Allen was convicted by a jury in the Ionia Circuit Court of failing to comply with the Sex Offenders Registration Act (SORA),
The Court of Appeals held:
1. The trial court did not abuse its discretion when it initially excluded a witness‘s testimony because she violated the court‘s sequestration order and was present during opening statements. Excluding an offending witness‘s testimony is a permissible, but extreme, sanction for violating a court‘s sequestration order, and it should be used sparingly. In this case, the trial court initially excluded the witness‘s testimony not only because the witness violated the sequestration order, but also because defendant failed to provide notice of the witness to the prosecution before trial. Therefore, the trial court‘s initial decision to exclude the witness‘s testimony was within the realm of reasonable and principled outcomes.
2. Defense counsel‘s failure to file a witness list constituted ineffective assistance of counsel, but defendant failed to show any prejudice to him as a result. Defendant claimed that counsel‘s failure to file a witness list placed him in the position of having to negotiate with the prosecution so that defendant‘s witness was allowed to testify. The prosecution suggested that it be allowed to introduce the testimony of an unlisted rebuttal witness if defendant was permitted to introduce the testimony of his witness. Defendant argued that had counsel filed a witness list, the defendant would not have been forced to accept the prosecution‘s compromise, and the trial court would not have permitted the prosecution to call defendant‘s wife as a rebuttal witness. How-ever, defendant could not show that in the absence of the compromise, the trial court would have refused to allow the prosecution to add a rebuttal witness. Statutory law allows the prosecution to add a witness to its list at any time on leave of the court for good cause shown. However, even without the prosecution witness‘s rebuttal testimony, the evidence against defendant was overwhelming, and defendant could not show that counsel‘s failure to file a witness list affected the outcome of his trial.
3. Defense counsel‘s failure to request a Walker hearing to determine the voluntariness of statements he made to the police did not constitute ineffective assistance of counsel. No evidence indicated that the police engaged in any conduct that would have overborne defendant and compelled him to make involuntary statements. Defendant was not in custody at the time he talked to the police, and therefore, Miranda warnings were not necessary. In addition, the police talked to defendant at his wife‘s residence where a reasonable person in his position would have felt free to leave.
4. The trial court did not err by not informing defendant‘s spouse of her spousal privilege before she testified at defendant‘s trial. Nor did the court err by assuming that defendant‘s wife waived her spousal privilege when she failed to assert it at trial. There is no precedent requiring a trial court to advise a witness of his or her right to invoke the spousal privilege when called to testify against a defendant-spouse. When a witness-spouse testifies against his or her defendant-spouse, he or she implicitly waives the spousal privilege. A defendant-spouse cannot invoke the privilege on behalf of the witness-spouse, and a defendant-spouse does not have standing to appeal the trial court‘s determination that the witness-spouse did not assert the privilege. The Court noted that it would be ideal if a trial court informed a witness-spouse of his or her testimonial privilege before the witness-spouse testified, and that counsel for a defendant-spouse could object to the witness-spouse‘s testimony to ensure that the witness-spouse is aware that he or she cannot be compelled to testify against his or her spouse.
5. The trial court did not abuse its discretion when it allowed the late endorsement of defendant‘s spouse as a prosecution witness, particularly when defendant knew before trial that his wife could possibly be called to testify.
6. The trial court erred by sentencing defendant to an enhanced sentence under the general habitual offender statute addressing second felony offenses rather than under the more specific provision for repeat offenders found in the statute penalizing noncompliance with the requirements of SORA. The maxi-mum possible sentence under the SORA-specific statute for a defendant convicted of twice violating SORA is different from the maximum possible sentence under the general habitual offender statute for second felony offenses. Because there is an irreconcilable conflict between the maximum possible sentence under each statute, the specific sentence enhancement statute prevails to the exclusion of the general sentence enhancement statute. In this case, defendant‘s maximum possible prison term was 7 years according to the SORA-specific statute, and not 1½ times the maximum sentence for a first conviction of the offense as indicated by the general habitual offender statute.
Conviction affirmed; case remanded for resentencing.
SEX OFFENDERS REGISTRATION ACT (SORA) — SENTENCING — SECOND OFFENSE.
The maximum term of imprisonment found in
Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Ronald J. Schafer, Prosecuting Attorney, and Anica Letica and Cheri L. Bruinsma, Assistant Attorneys General, for the people.
John W. Ujlaky for defendant.
Before: BECKERING, P.J., and BORRELLO and GLEICHER, JJ.
PER CURIAM. Defendant was convicted by jury of failing to comply with the Sex Offenders Registration Act (SORA), second offense,
I. FACTS AND PROCEDURAL HISTORY
Following a conviction of fourth-degree criminal sexual conduct in 2007, defendant was required to register under SORA. On April 30, 2012, defendant registered with the address of 6123 Clarksville Road. As required by SORA, defendant verified that address on January 9, 2013.
On March 17, 2013, Officer James Yeager received an anonymous tip that suggested defendant was not in compliance with SORA. Yeager testified that the tipster stated that someone should investigate where defendant was living and provided an address of 211 West Riverside Drive. Yeager and his partner began investigating the anonymous tip. Yeager testified that the Clarksville Road address was a trailer home that appeared to be uninhabitable. The residence was unlit and appeared to be vacant or unoccupied. Yeager testified that there was snow on the ground, but he observed no tire tracks in the driveway or footprints leading up to the front porch or around the back of the
Yeager and his partner returned to the Clarksville Road address three days later, on March 20, 2013. Yeager testified that as they approached the residence, he observed that his tire tracks from March 17 were the only visible tire tracks. He additionally observed that there were no footprints in the snow leading up to the residence. Yeager testified that it was again obvious no one was at the residence.
On March 26, 2013, Yeager returned a third time to defendant‘s Clarksville Road address. He testified that he walked around the residence and observed only his and his partner‘s footprints from their previous visits. Likewise, he observed no new tire tracks and once more concluded no one was at the residence.
After his third visit to 6123 Clarksville Road, Yeager visited the address given in the anonymous tip, 211 West Riverside Drive. He visited this address around 10:00 p.m. on March 26, 2013. Yeager testified that Lisa Allen, defendant‘s wife,1 answered the door when he knocked. Yeager asked Lisa for defendant. After initially denying that defendant was present, Lisa went inside the residence and defendant appeared at the front door shortly thereafter. Yeager asked defendant where he had been staying. Defendant responded with the Clarksville Road address and indicated that he had stayed there the previous night. Yeager told defendant that he had been monitoring that residence for a period of time and knew defendant was not staying there. Defendant then explained that he worked on Parmeter Road at a carnival-type operation run by Michael Clark. He stated that he stayed at 901 West Parmeter Road for a couple of weeks. Defendant told Yeager that he stopped by Lisa‘s residence after he finished working on Parmeter Road that day, but he planned to get a ride to his address on Clarksville Road to spend the night there. Defendant admitted to Yeager that it had been a couple of weeks since he had been to
the Clarksville Road address, but he insisted it was inhabitable and heated. After this discussion, Yeager arrested defendant for failing to comply with SORA‘s registration requirements.
Yeager testified that after he arrested defendant, he attempted to locate 901 West Parmeter Road. Yeager could not locate 901, but he found 909 West Parmeter Road. At that address, Yeager came in contact with Lucinda Pilot. Pilot was familiar with defendant and was able to answer Yeager‘s questions regarding defendant‘s residency status. Pilot testified that, at the time she spoke to Yeager, defendant was not living with her or on the Parmeter Road property where he worked.
Pilot had previously lived at 6123 Clarksville Road from May 2012 until October 12, 2012. Pilot testified that defendant was supposed to be living there as well. However, Pilot could only recall two nights from May 2012 to October 2012 that defendant slept there. Defendant slept there once in May 2012 when Pilot first moved into the trailer. The second time defendant slept there was on a night near the end of summer before his probation officer came out to see him. Regarding
Before the prosecutor rested her case-in-chief, defendant indicated that he wanted to call Kathryn Perry, Lisa‘s sister, as a defense witness. Initially, the trial court precluded Perry‘s testimony for two reasons: first, Perry had sat in the courtroom during opening statements contrary to the trial court‘s sequestration order and, second, defendant failed to notify the prosecutor of the witness before trial. In discussing Perry‘s testimony, the prosecutor asked the trial court for a compromise. The prosecutor suggested that if the trial court allowed Perry to testify, then she would call Lisa as a rebuttal witness. Defense counsel initially objected, citing spousal privilege. Defense counsel stated:
I don‘t know that she‘s been advised that she holds the spousal privilege and is in a position to waive it. She may have made an incriminating statement to Trooper Yeager at the time he came to her house. . . . I would request that she be advised on her spousal privilege and also her Fifth Amendment protection.
The trial court responded, “I‘m going to need some authority from you before I do that.”
Following the prosecution‘s case-in-chief, defense counsel stated:
I‘d like to resolve the witness issue. My office tells me that the wife has to claim but she can‘t if she‘s a victim. I don‘t believe she‘s a victim in this case so the wife would have to claim the privilege. Whether she waives it or not would be up to her. We would ask that you order the compromise. Ms. Kathryn Perry can testify during our presentation and Ms. — Mrs. Allen can testify on rebuttal.
The trial court accepted the parties’ compromise and permitted Perry and Lisa to testify. The issues of spousal immunity and the Fifth Amendment were not revisited.
Perry testified that she owned the trailer on 6123 Clarksville Road. She testified that she and defendant had an agreement that he was to make sure no one broke into the trailer. Defendant did not pay rent to live there. Perry testified that she visited once a month to check on the residence and make sure it was being maintained. Perry visited the trailer on March 15, 2013, for this purpose. Perry testified that she did not expect defendant to be there when she visited because “[m]ost of the time he wasn‘t there.” On March 15, it did not appear to Perry that defendant had vacated the property. She testified that the temperature was normal; she and defendant agreed that he would turn down the heat to 55 degrees any time he left the trailer. Perry further testified that defendant did not have many personal belongings, but the belongings he did have were there when she visited.
After Perry‘s testimony, the prosecutor called Lisa as a rebuttal witness. Lisa testified that she lived at 211 West Riverside Drive. When Yeager came to her house in March 2013, defendant “was staying there. He wasn‘t living there.” Lisa testified that defendant had been there for about six months. Defendant kept some clothes at her house and slept on a mattress on the living room floor. Lisa testified that defendant did not stay there every day; he was there approximately five days a week. Finally, Lisa testified that for the previous six months, defendant spent more time at her address than he did at the trailer on Clarksville Road.
II. ANALYSIS
A. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant argues that defense counsel was ineffective for failing to file a witness list. “Whether a person has been denied effective assistance of counsel is a mixed question of fact and constitutional law.” People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). Generally, a trial court‘s findings of fact, if any, are reviewed for clear error, and questions of constitutional law are reviewed de novo. Id. However, because this issue is unpreserved, our review is limited to mistakes apparent in the lower court record. People v Fike, 228 Mich App 178, 181; 577 NW2d 903 (1998).
For a claim of ineffective assistance of counsel, a defendant must first establish that counsel‘s representation was deficient by an objective standard of reasonableness. People v Toma, 462 Mich 281, 302; 613 NW2d 694 (2000). Second, a defendant “must show that the deficient performance prejudiced the defense” by establishing “the existence of a reasonable probability that but for counsel‘s error, the result of the proceeding would have been different.” People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001), quoting Strickland v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 US at 694.
Defense counsel‘s failure to file a witness list fell below an objective standard of reasonableness. The prosecutor made a request for discovery under
Although defense counsel‘s performance was deficient, defendant has failed to establish prejudice in this case. See Carbin, 463 Mich at 600. The trial court permitted defendant to call Perry despite defense counsel‘s failure to provide a witness list. Defendant argues that he was prejudiced due to the parties’ compromise. Specifically, he argues that the prosecutor would not have been permitted to call Lisa as a rebuttal witness had defense counsel filed a witness list. However, defendant cannot show that the trial court would have excluded Lisa‘s testimony had defense counsel properly filed a witness list and called Perry at trial. See
Moreover, even without Lisa‘s testimony, the evidence against defendant was overwhelming, and defendant cannot show that defense counsel‘s failure to file a witness
new address within three business days after changing or vacating his residence or intending to temporarily reside at any place other than his residence for more than seven days.” See
the place at which a person habitually sleeps, keeps his or her personal effects, and has a regular place of lodging. If a person has more than one residence, or if a wife has a residence separate from that of the husband, that place at which the person resides the greater part of the time shall be his or her official residence . . . . [See
MCL 28.722(p) .]
In this case, there was substantial evidence to support the allegation that defendant changed or vacated his registered residence, or intended to reside at a place other than his residence for more than seven days, and that he failed to appear in person before the registering authority to report his new address. Yeager testified that the trailer at defendant‘s registered address appeared uninhabitable between March 17, 2013, and March 26, 2013. On March 26, 2013, Yeager found defendant at Lisa‘s house. When confronted about his address, defendant told Yeager that he had been staying at Parmeter Road for the previous two weeks. Defendant admitted that it had been a couple of weeks since he stayed at the Clarksville Road address, but he insisted it was inhabitable and heated. Thus, the jury heard incriminating statements from defendant that he was not staying at his registered address. Moreover, Pilot testified that when she resided at the trailer on Clarksville Road, defendant was also supposed to be living there. However, she testified that defendant only slept at the residence two times between May 2012 and October 2012. She further testified about one occasion when defendant stayed at Lisa‘s residence. Finally, Perry‘s testimony supported the allegation that defendant did not reside at the trailer. Although Perry testified that she saw defendant‘s few personal items at the trailer when she checked on the residence, Perry explained that defendant was not at the trailer “most of the time” when she checked the residence. She explained that she and defendant had an agreement that he was to ensure that no one broke into the trailer. She testified that he did not pay rent to stay there. On this record, defendant cannot show there is a reasonable probability that but for counsel‘s error, the outcome of the trial would have been different, and his claim of ineffective assistance of counsel fails. Carbin, 463 Mich at 600.
Next, defendant argues that defense counsel was ineffective for failing to move the trial court for a Walker3 hearing to determine the admissibility of statements he made to the police. Defendant contends that his statements were involuntary because he was never advised of his
In this case, defendant was not in custody when Yeager asked him questions about where he was staying. Defendant was questioned at his wife‘s house where a reasonable person in defendant‘s position would have believed he was free to leave. See People v Vaughn, 291 Mich App 183, 189; 804 NW2d 764 (2010), aff‘d on alternative grounds, vacated in part on other
grounds 491 Mich 642 (2012). “[N]oncustodial interrogation might possibly in some situations, by virtue of some special circumstances, be characterized as one where the behavior of . . . law enforcement officials was such as to overbear petitioner‘s will to resist and bring about confessions not freely self-determined . . . .” Beckwith v United States, 425 US 341, 347-348; 96 S Ct 1612; 48 L Ed 2d 1 (1976) (quotation marks and citation omitted). In determining voluntariness, this Court applies an objective standard and examines the totality of the circumstances. Fike, 228 Mich App at 181. Factors used to determine voluntariness include “the age, education, intelligence level, and experience of the defendant, the duration of the defendant‘s detention and questioning, the defendant‘s mental and physical state, and whether the defendant was threatened or abused.” Id. at 181-182.
The record indicates that at the time Yeager questioned defendant at Lisa‘s residence, there were no special circumstances present that overbore defendant and compelled him to offer involuntary statements. Beckwith, 425 US at 348. As noted, defendant was not in custody at the time of questioning, and the record supports that the questioning was brief. Furthermore, defendant had experience with the police related to his prior conviction and his SORA registration. To the extent that defendant argues his statements were involuntary because the police did not read him his Miranda rights, there is no evidence to support that defendant‘s freedom was restricted in such a manner that rendered him “in custody” at the time of questioning, and therefore, Yeager was not obligated to provide defendant with Miranda warnings. See People v Mendez, 225 Mich App 381, 384; 571 NW2d 528 (1997) (” ‘Miranda warnings are required only where there has been such a restriction on a person‘s freedom as to render him “in custody“.’ “) (citation omitted). In conclusion, there was no evidence to support defendant‘s contention that he was in custody at the time of questioning or that he made involuntary statements to police. Therefore, defense counsel was not ineffective for failing to request a Walker hearing. Fike, 228 Mich App at 182 (“[T]rial counsel cannot be faulted for failing to raise an objection or motion that would have been futile.“).
B. ADMISSIBILITY OF EVIDENCE
Next, defendant claims several errors with respect to Lisa‘s testimony on rebuttal. He contends that the trial court was obligated to inform Lisa of her spousal privilege and Fifth Amendment privilege. He also argues that the prosecutor intended to “sandbag” the defense by calling Lisa as a rebuttal witness because she was not endorsed as a res gestae witness. Finally,
We review a trial court‘s evidentiary rulings for an abuse of discretion, while questions of law surrounding the admissibility of evidence are reviewed de novo. People v Duncan, 494 Mich 713, 722-723; 835 NW2d 399 (2013). “[I]t is an abuse of discretion to admit evidence that is inadmissible as a matter of law.” People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999).
Defendant argues that the trial court was obligated to inform Lisa that she could invoke her spousal privilege and refuse to testify against defendant.
We are unaware of any published caselaw in Michigan addressing whether a trial court must expressly inform a testifying spouse about his or her testimonial privilege before the spouse testifies or whether a nontestifying spouse has standing to challenge a court‘s failure to do so. The United States Court of Appeals for the Seventh Circuit,5 however, has addressed a similar issue in the context of the federal spousal testimonial privilege. As with Michigan‘s spousal privilege, the testifying spouse is also the holder of the privilege for purposes of the federal spousal testimonial privilege. See, e.g., Trammel v United States, 445 US 40, 53; 100 S Ct 906; 63 L Ed 2d 186 (1980). Specifically, in United States v Brock, 724 F.3d 817, 823 (CA 7, 2013), the defendant‘s wife testified at a pretrial detention hearing. During the defendant‘s subsequent criminal trial, the district court determined that the wife waived her testimonial privilege by testifying at the detention hearing. Id. On appeal, the defendant argued that the district court
erred by determining that his wife waived her privilege. Id. The Seventh Circuit held that the defendant did not have standing to challenge the district court‘s finding because he was not the holder of the privilege. Id. The court explained, “because the defendant-spouse could not invoke the privilege, he also could not appeal a rejection of the privilege.” Id. See United States v Lofton, 957 F2d 476, 477 n 1 (CA 7, 1992), relying on Trammel, 445 US at 53.
The holding in Brock aligns with precedent from other jurisdictions. For example, in Smith v United States, 947 A2d 1131, 1135 (DC, 2008), the Court of Appeals for the District of Columbia applied the District of Columbia‘s testimonial privilege, which mirrors the federal privilege, and noted that “it is a ‘settled rule’ that ‘a defendant ordinarily does not have standing to complain of an erroneous ruling on a
In this case, the trial court did not expressly determine that Lisa waived her testimonial privilege before she willingly testified without objection. By allowing her to testify, the trial court implicitly concluded that Lisa did not assert her testimonial privilege. As discussed below, while it would have been ideal for the trial court to have informed Lisa on the record of her privilege and to have inquired whether she understood and waived her privilege, defendant could not invoke Lisa‘s testimonial privilege, and he has no standing to appeal the court‘s determination that Lisa did not assert the privilege. Brock, 724 F3d at 823.
Although defendant does not have standing to raise the issue on appeal, like the Seventh Circuit, we recognize “several consequences of this rule” and note that “[n]othing should stop counsel for the defendant-spouse from raising an objection to the witness-spouse‘s testimony to ensure that she knows she cannot be required to testify against the defendant-spouse.” Id. Additionally,
[g]iven the importance of the spousal testimonial privilege, it would . . . be entirely appropriate and often prudent for the [trial] court, even in the absence of an objection, to make sure that the testifying spouse understands that she cannot be required to testify against her spouse, especially if she does not have her own counsel. [Id.]
Indeed, in order to give effect to the testimonial privilege enumerated in
Next, defendant appears to argue that the trial court erred when it did not inform Lisa of her Fifth Amendment right against self-incrimination. However, as noted above, defendant lacks standing to assert a Fifth Amendment privilege for a witness, Paramount Pictures Corp, 418 Mich at 715; Wood, 447 Mich at 90, and his argument therefore fails.6
Defendant also appears to assert that the prosecutor failed to provide notice that Lisa would be called as a witness in an attempt at “subterfuge” and to “sandbag” the defense. To the extent that defendant asserts a claim of prosecutorial misconduct, defendant fails to provide any supporting authority and fails to otherwise develop his argument. The issue is therefore abandoned and we need not review it. See People v Kelly, 231 Mich App 627, 640-641; 588 NW2d 480 (1998) (“[A defendant] may not merely announce his position and leave it to this Court to discover and rationalize the basis for his claims, nor may he give only cursory treatment with little or no citation of supporting authority.“). Nevertheless, having considered the merit of defendant‘s argument, we conclude that nothing in the record supports defendant‘s assertion that the prosecutor committed misconduct in this case.
Next, defendant argues that the trial court erred by initially excluding Perry‘s testimony on the grounds that she violated the court‘s sequestration order.
In this case, the trial court sequestered all witnesses and potential witnesses before trial. The trial court and the attorneys
C. SENTENCING
Defendant argues that he is entitled to be resentenced because the trial court erred when it enhanced his sentence under both the general habitual offender provision in
The resolution of this issue requires that we interpret the habitual offender statute and the sentencing enhancement provisions of SORA. We review questions of statutory interpretation de novo. Klooster v City of Charlevoix, 488 Mich 289, 295; 795 NW2d 578 (2011). “The primary goal of statutory interpretation is to give effect to the Legislature‘s intent, focusing first on the statute‘s plain language.” Id. at 296. When the statutory language is clear and unambiguous, judicial construction is not permitted and we will enforce the statute as written. People v Gardner, 482 Mich 41, 50; 753 NW2d 78 (2008).
Defendant was convicted under
(1) Except as provided in subsections (2), (3), and (4),7 an individual required to be registered under this act who willfully violates this act is guilty of a felony punishable as follows:
(a) If the individual has no prior convictions for a violation of this act, by imprisonment for not more than 4 years or a fine of not more than $2,000.00, or both.
(b) If the individual has 1 prior conviction for a violation of this act, by imprisonment for not more than 7 years or a fine of not more than $5,000.00, or both.
(c) If the individual has 2 or more prior convictions for violations of this act, by imprisonment for not more than 10 years or a fine of not more than $10,000.00, or both.
[Emphasis added.]
Defendant does not dispute that he had one prior conviction, in 2010, for violating
(1) If a person has been convicted of a felony or an attempt to commit a felony . . . and that person commits a subsequent felony . . . , the person shall be punished upon conviction of the subsequent
felony and sentencing under [ MCL 769.13 ] as follows:(a) If the subsequent felony is punishable upon a first conviction by imprisonment for a term less than life, the court . . . may . . . sentence the person to imprisonment for a maximum term that is not more than 1½ times the longest term prescribed for a first conviction of that offense or for a lesser term.
* * *
(3) A conviction shall not be used to enhance a sentence under this section if that conviction is used to enhance a sentence under a statute that prohibits use of the conviction for further enhancement under this section. [Emphasis added.]
The trial court sentenced defendant to a maximum term that was 1½ times the longest term (7 years) prescribed in
In this case, defendant was convicted of a subsequent offense under
Although defendant was subject to not more than a 6-year prison sentence under
The prosecution argues that defendant‘s sentence should be enhanced under
We agree with the prosecution that there is no language in
Next, defendant contends that the trial court erred by assessing 10 points for Prior Record Variable (PRV) 7.
“Under the sentencing guidelines, the circuit court‘s factual determinations are reviewed for clear error and must be supported by a preponderance of the evidence.” People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013). “Whether the facts, as found, are adequate to satisfy the scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question of statutory interpretation, which an appellate court reviews de novo.” Id.
PRV 7 governs a defendant‘s subsequent or concurrent felony convictions.
The trial court calculated defendant‘s minimum recommended sentence range at 5 to 28 months. This amounted to error.
We affirm defendant‘s conviction, vacate his sentence, and remand for resentencing consistent with this opinion. We do not retain jurisdiction.
BECKERING, P.J., and BORRELLO and GLEICHER, JJ., concurred.