F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS DEC 21 1999 TENTH CIRCUIT PATRICK FISHER Clerk
BRETT L. CANDELARIA,
Petitioner-Appellant, v. No. 99-2040 TIM LEMASTER, Warden; and (D.C. No. CIV-97-416-BB) ATTORNEY GENERAL FOR THE (D.N.M.) STATE OF NEW MEXICO,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, TACHA , and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Asserting that his attorney provided ineffective assistance by coercing him
into a plea agreement, Brett L. Candelaria filed a petition pursuant to 28 U.S.C.
This order and judgment is not binding precedent, except under the *
doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. § 2254 seeking a writ of habeas corpus. The district court dismissed Candelaria’s
petition, concluding that Candelaria’s decision to accept the plea was knowing
and voluntary. We previously granted a certificate of appealability and now
affirm.
I.
In 1993, Candelaria was charged in state court with five counts of criminal
sexual misconduct. He was represented by court-appointed counsel, Scott Curtis,
from the time the charges were filed until he entered a plea and was sentenced.
Three of the five counts charged Candelaria with criminal sexual penetration of a
minor, a first degree felony punishable by a prison term of up to 18 years. The
remaining two counts charged Candelaria with criminal sexual contact with a
minor, a third degree felony punishable by a prison term of up to three years. As
a result, Candelaria faced the possibility of a 60-year sentence. After the
preliminary hearing, at which at least one of the alleged victims testified, 1 and
after several discussions with his counsel, Candelaria agreed to plead no contest
to four counts of criminal sexual contact with a minor. Candelaria’s maximum
prison sentence (without enhancement) under the proposed plea agreement was
12 years.
1 According to the government, three victims testified at the preliminary hearing. See Appellee’s Answer Brief at 23. Neither party to this appeal submitted a copy of the transcript of the preliminary hearing.
2 On March 30, 1994, New Mexico district judge Ben Eastburn accepted
Candelaria’s plea. In response to questions posed by Judge Eastburn at the plea
hearing, Candelaria indicated that he had discussed the case with his attorney and
was aware of the rights he would give up by entering the plea. The judge
explained that Candelaria’s maximum prison sentence under the agreement was
twelve years, with the possibility of four additional years if the court enhanced
the sentence. Candelaria confirmed that he signed the plea and that he read and
understood the accompanying disposition agreement. He also stated that he had
not been promised any benefits beyond those spelled out in the agreement. See
Audiocassette Transcript dated 3/30/94 at counter nos. 40-52, 60-75, 87-100,
131-43. After the prosecution described the evidence it intended to present at
trial, Candelaria stated that he understood the charges and pleaded no contest.
Id. at counter nos. 223-29. Judge Eastburn accepted the plea after concluding
that Candelaria’s plea was knowing and voluntary, and that there was a factual
basis for the plea. Id. at counter nos. 229-35.
On May 3, 1994, Candelaria filed a motion to withdraw his plea.
Candelaria argued in the motion that his plea was coerced and based on
misinformation supplied by Curtis. On July 15, 1994, New Mexico district judge
Paul Onuska held an evidentiary hearing to assess the merits of Candelaria’s
motion. Three witnesses testified at the hearing: Judge Eastburn, Curtis, and
3 Candelaria. Judge Eastburn testified that he was “very satisfied” that Candelaria
understood the plea agreement and agreed to it voluntarily. Transcript Dated
7/15/94, part 1 (“Tr. 1”), at 4-5. The judge indicated that if he had “thought it
wasn’t voluntary or it wasn’t understood or there weren’t facts to support it,” he
“wouldn’t have taken the plea.” Id. at 6; see also id. (expressing the view that
Candelaria’s plea was “fully understood, fully voluntary”).
Curtis’ testimony at the hearing, although somewhat inconsistent, tended to
support Candelaria. Curtis stated that he met with Candelaria four or five times
to discuss the plea, and described the meetings as follows:
[Candelaria] was always adamant that he had done nothing wrong and that he had not committed the act with which he was charged. He never wavered from that, from that position[.] [T]o say that I was zealous in advocating that he take this plea is probably an understatement. I was, I think I characterized it in our motion, as extremely overbearing and . . . in retrospect I believe that was accurate. I thought the deal he was being offered under the circumstances and under the facts was an extremely good deal. And . . . I was extremely pushy to get him to take it. Cause I felt it was in his best interest. So . . . our meetings were highly charged. And I was [an] extremely zealous advocate during those meetings.
Id. at 12. Curtis similarly testified that he had “dealt with a lot of criminal
defendants over the years” and that he was “as zealous and as overbearing and as
pushy with regard to this plea” as he had been with any other defendant. Id. at
4 16. Curtis was concerned that his “aggressive advocacy” and Candelaria’s youth 2
left Candelaria “in a position where he probably did something he didn’t want to
do.” Id. ; see also Transcript Dated 7/15/94, part 2 (“Tr. 2”), at 6 (communicating
Curtis’ belief that Candelaria seemed “defeated” and “resigned” when answering
Judge Eastburn’s questions at the plea hearing).
Curtis also worried that “there may not have been a meeting of the minds”
when he and Candelaria discussed various types of pleas. Tr. 1 at 13. Curtis
recalled that after he explained guilty, no contest, and Alford 3 pleas, he “made
the decision basically without . . . asking [Candelaria] if he approved or
disapproved of it and gave him plea paperwork that said no contest without . . .
any discussion.” Id. at 13, 14; see also id. at 14 (expressing Curtis’ view that
only a no contest plea would permit Candelaria to “take the position that [he]
didn’t do anything wrong” while avoiding civil liability). According to Curtis,
Candelaria “understood that it was a no contest plea when he entered it,” but
“probably didn’t recognize the distinction between no contest and Alford .” Id. at
14. Curtis further recalled that after the plea hearing Candelaria indicated that he
thought he had entered an Alford plea. Id. at 13, 16.
2 Candelaria was 22 years old. He could read and write, but did not attend school beyond the tenth grade. Transcript Dated 7/15/94, part 2, at 8-9. 3 The parties’ references to Alford pleas are based on North Carolina v. Alford , 400 U.S. 25 (1970). The Alford decision is discussed infra at 14-15.
5 That said, Curtis went on to testify that he believed Candelaria’s plea may
have been voluntary. Curtis emphasized that he
didn’t physically threaten [Candelaria] or twist his arm or put any kind of pressure on him other than to continue to remind him that the facts were difficult against him. That defenses against the charges were difficult. That he was in a bad position. I continually reminded him of the fact that he was in a bad position. . . . [W]hen I talk about the zealous aggressive attitude that I approach[ed] his plea with[,] I wasn’t getting into his face and backing him into corners or being physical. I was just extremely zealous in talking [to] him about the difficulties of winning the case at trial and the fact that the trade off was [a] tremendous disadvantage to him if he went to trial and lost. Obviously he’s looking at an awful long time in jail [as] opposed to the deal that we made.
Id. at 17; see also id. at 16 (indicating that Curtis never threatened Candelaria).
Curtis stated that the goal was to ensure Candelaria understood that
his entire position was that these victims, or alleged victims[,] were lying. I continued to advocate the position that it would be impossible in my mind to convince a jury that three victims of this age would conspire to lie and send a man to prison. . . . I’d keep pointing out to him that the strengths of the State’s case . . . far outweighed . . . his position that he simply didn’t do this.
Tr. 2 at 5. In Curtis’ view, Candelaria gave “every appearance of understanding”
the difficulties posed by the State’s evidence. Id. at 6; see also id. at 3 (stating
that Candelaria seemed to understand what his options were).
Candelaria’s testimony at the hearing before Judge Onuska was similarly
inconsistent, but again suggested that Candelaria felt pressured by Curtis.
Candelaria stated that he “want[ed] to go to trial” and that he informed Curtis of
6 his wishes. Id. at 10. Candelaria recalled that he and his mother met with Curtis
on the morning of the plea hearing, and described the meeting as follows:
[Curtis] told me that I was crazy if I didn’t take it. That I should go ahead and take the plea and I told him I didn’t want to. I said I told you . . . I didn’t want to and he goes, well you’d say yes and then you say no. I said, well I say yes because you sit there and hound me till I do. . . . What I decided was that I didn’t want to take it. [Curtis] just threw the papers on the counter. Said we’ve talked about it. You know we need to decide here what we’re going to do here. He said, I’ve told you and that’s when he proceeded to tell me everything again. And then my mom and him kinda got into an argument and it just irritated the heck out of me. So I just threw, I just threatened to sign the papers and said here I’ll just sign the f-ing papers and I passed them over to [Curtis]. You know hastily across the table.
Id. at 11. 4 Candelaria reiterated that he felt “pressured by [his] attorney,” did not
agree to the plea of his own free will, and would not have agreed to enter the plea
if Curtis had not strongly urged him to do so. Id. at 14, 13. Candelaria also
stated that he believed he was entering an Alford plea when he appeared before
Judge Eastburn. Id. at 15.
Other parts of Candelaria’s testimony were more equivocal. For example,
Candelaria also testified that he signed the plea agreement because he “was just
tired of messing with all of it.” Id. at 12. Candelaria explained:
4 Curtis also testified about this meeting. Curtis believed that Candelaria appeared “undecided about what he wanted to do” on the morning of the plea hearing. Tr. 1 at 13. During the argument between Curtis and Candelaria’s mother, Candelaria “finally threw his hands up in the air” and stated that he “just wanted to get it over with” by entering the plea. Id.
7 Just all of this, I mean I’ve lost jobs over this, because people call my job and tell them what’s going on. And so they find an excuse to let me go. And this has gone on for so long. I lost a lot of friends over it. I’ve had some friends stick by me and I just figured you know . . . I just kinda in my head just gave up. I just got tired of messing with it. My mom and the attorney are arguing. I don’t like to contradict [Curtis] cause he’s an elder. So I just signed it.
Id. ; accord id. at 14. When asked whether anyone forced him to sign the
document, Candelaria responded that “as far as pressure, I would say yes, it was
more of a peer pressure.” Id. at 13. Candelaria also agreed that Curtis
thoroughly explained his options, that he understood what Curtis told him, and
that he did not have difficulty understanding the proceedings before Judge
Eastburn. Id. at 16-17. A prosecutor concluded his cross-examination of
Candelaria with the following question:
Mr. Devore: Now when Judge Eastburn asked you a litany of questions and one of the questions was, was this plea voluntary? . . . . And you told him that it was. Were you telling the truth that day?
Mr. Candelaria: I feel that I was. I mean to what I felt voluntary was[,] talking about voluntary today. Maybe I wasn’t. The way I felt that day, I guess yeah I did.
Id. at 21.
Judge Onuska denied Candelaria’s motion to withdraw his plea, concluding
the plea was indeed voluntary. Id. at 24. Candelaria was sentenced to 12 years
imprisonment with all but four years of the sentence suspended. See Transcript
dated 11/29/94 (“Tr. 3”), at 25. Before he announced Candelaria’s sentence,
8 Judge Onuska stated on the record:
Mr. Candelaria, no matter what I decide here, I want to say a few things first of all. It is clear for me you are extremely articulate, forceful and convincing. And I will not raise it to the level of con- man. But I will say that you know how to turn a phrase very well. And that’s to your credit. And the way I believe, and that’s why I felt that before and why I still believe . . . [n]obody talked you in[to] admitting your guilt in this thing, allowing a guilty plea to come into this thing. You[’re] a lot too forceful and a lot to[o] knowledgeable to have anybody do that to you.
Id. at 24.
After exhausting his state court remedies, in 1997 Candelaria filed a
petition for a writ of habeas corpus in federal court. Candelaria asserted in the
petition that he was “coerced and intimidated” into accepting the plea, that he did
not understand the terms of the plea, and that the plea was a product of Curtis’
failure to adequately investigate the charges. Record on Appeal (“ROA”), Doc.
1, at 2. The district court, adopting the recommendations of a magistrate judge,
rejected Candelaria’s claims and dismissed the petition. See Appellant’s Brief-
In-Chief, Attach. A-B.
II.
Our review of the denial of a habeas corpus petition is governed by 28
U.S.C. § 2254. When a state court has adjudicated the merits of the petitioner’s
claim for relief, the writ cannot be granted unless the adjudication resulted in a
decision that was (1) “contrary to, or involved an unreasonable interpretation of,
9 clearly established Federal law, as determined by the Supreme Court,” or (2)
“based on an unreasonable determination of the facts in light of the evidence
presented” in the state court proceeding. 28 U.S.C. § 2254(d)(1)-(2). In these
circumstances we presume that the factual findings of the state court are correct
unless the petitioner can rebut this presumption with clear and convincing
evidence. 28 U.S.C. § 2254(e)(1); Smallwood v. Gibson , 191 F.3d 1257, 1264-
65 (10th Cir. 1999). 4 Applying these standards to the case at hand, we conclude
that the state courts, in denying relief to Candelaria, did not render any decisions
that were contrary to, or involved an unreasonable interpretation of, clearly
established Federal law.
Candelaria principally contends that he is entitled to relief because he
received ineffective assistance of counsel. To prevail on such a claim, a
defendant must satisfy the well-worn requirements of Strickland v. Washington ,
466 U.S. 668 (1984). First, the defendant must show that his counsel’s
representation “fell below an objective standard of reasonableness.” Id. at 688.
To do so, the defendant must overcome the “strong presumption” that “counsel’s
4 When a state court has not adjudicated the merits of the petitioner’s claim for relief, “this court reviews the district court’s conclusions of law de novo and factual findings, if any, for clear error.” Wallace v. Ward , 191 F.3d 1235, 1241 (10th Cir. 1999). However, if the district court’s factual findings are based exclusively on the state court record, “we do not give them the benefit of the clearly erroneous standard but instead conduct an independent review.” Smallwood , 191 F.3d at 1264 n.1 (citation omitted ).
10 conduct falls within the wide range of reasonable professional assistance” and
that “the challenged action might be considered sound trial strategy.” Id. at 689
(citation and internal quotation marks omitted); see also id. (“Judicial scrutiny of
counsel’s performance must be highly deferential.”). Second, the defendant must
show that his counsel’s deficient performance prejudiced the defense. Id. at 687,
691-92; see also id. at 694 (stating that a defendant must prove that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different”). When a plea agreement is at issue,
to show prejudice the defendant must demonstrate that “but for counsel’s errors,
he would not have pleaded guilty and would have insisted on going to trial.” Hill
v. Lockhart , 474 U.S. 52, 59 (1985).
Candelaria cannot establish a necessary predicate for his ineffective
assistance of counsel claim – that his plea was, in fact, coerced by his attorney.
“The longstanding test for determining the validity of a guilty plea is whether the
plea represents a voluntary and intelligent choice among the alternative courses
of action open to the defendant.” Id. at 56 (citation and internal quotation marks
omitted); accord United States v. Carr , 80 F.3d 413, 416 (10th Cir. 1996);
Osborn v. Shillinger , 997 F.2d 1324, 1327 (10th Cir. 1993). As a corollary, we
will “uphold a state court guilty plea on federal review if the circumstances
demonstrate that the defendant understood the nature and the consequences of the
11 charges against him and that the defendant voluntarily chose to plead guilty.”
Miles v. Dorsey , 61 F.3d 1459, 1466 (10th Cir. 1995) (citing Boykin v. Alabama ,
395 U.S. 238, 242-44 (1969)). Whether a defendant involuntarily entered a plea
based on ineffective assistance of counsel is “a mixed question of law and fact
that we review de novo.” Carr , 80 F.3d at 417. To the extent that this question
“depends on findings of fact made by the state court on habeas review,” however,
“these findings, with specified exceptions, carry a presumption of correctness.”
Cunningham v. Diesslin , 92 F.3d 1054, 1060 (10th Cir. 1996).
The evidence developed in state court demonstrates that Candelaria
understood the nature of the charges against him and voluntarily entered a plea.
Candelaria testified without contradiction that he understood his “options” (i.e.,
going to trial or entering a plea of some sort), as well as the strengths of the
prosecution’s case and the weaknesses of his own case. He also testified that he
understood the proceedings before Judge Eastburn. During those proceedings,
Candelaria indicated on the record that he understood the factual basis for the
charges, the rights he would forfeit by entering a plea, and the possibility that he
would receive a prison sentence of up to 16 years. These solemn declarations in
open court “carry a strong presumption of verity” and thus “constitute a
formidable barrier” to Candelaria’s petition for collateral relief. Blackledge v.
Allison , 431 U.S. 63, 74 (1977); accord Lasiter v. Thomas , 89 F.3d 699, 702
12 (10th Cir. 1996); Laycock v. New Mexico , 880 F.2d 1184, 1186-87 (10th Cir.
1989). Moreover, two New Mexico trial judges, after observing Candelaria’s
behavior and listening to his comments in the courtroom, concluded that
Candelaria knowingly and voluntarily pleaded no contest. To the extent these
conclusions encompass findings of historical fact, they are presumptively correct.
See 28 U.S.C. § 2254(e)(1). This uncontroverted or presumptively correct
evidence overshadows Candelaria’s inconsistent testimony as to whether his plea
was voluntary. Compare Tr. 2 at 13, 14 (stating that Candelaria was pressured by
Curtis and did not accept the plea of his own free will), with id. at 12-14 (stating
that Candelaria accepted the plea because of “peer pressure” and because he was
tired of “messing with” the loss of jobs and friends), and id. at 21 (stating that
Candelaria felt the plea was voluntary when it was entered).
Curtis’ testimony is insufficient to show that Candelaria was coerced into
pleading no contest. Curtis’ concern that he may have induced Candelaria to
“d[o] something he didn’t want to do” ignores the fact that a defendant cannot
seek refuge in the Sixth Amendment simply because his attorney “vigorously
urges” him to accept a plea agreement that appears to be in his best interest. See
Miles , 61 F.3d at 1470 (quoting Williams v. Chrans , 945 F.2d 926, 933 (7th Cir.
1991) for the proposition that “even strong urging by counsel does not invalidate
a guilty plea”) (additional citation and internal quotation marks omitted); see also
13 Carr , 80 F.3d at 417 (rejecting a claim of coercion even though an attorney
castigated his client for resisting a plea agreement by calling him “stupid” and “a
f***ing idiot”). Similarly, proof of “time pressure, stress, mental anguish, and
depression” experienced in plea discussions does not establish that a defendant’s
plea was involuntary. Miles , 61 F.3d at 1470. Although Curtis believed in
retrospect that he might have been “overbearing,” his testimony reveals that he
did nothing more than zealously encourage Candelaria to accept an agreement
that eliminated the possibility of a 60-year prison sentence – a sentence that was
not inconceivable given the evidence the prosecution would have presented at
trial. Candelaria, not Curtis, was the final arbiter of whether the case would go
to trial. Cf. Carr , 80 F.3d at 417 (commenting that even when outside pressures
are “palpable” to a defendant, they “do not vitiate the voluntariness of his plea; it
[is] still his choice to make”).
Candelaria’s argument that he acted involuntarily because he believed he
was entering an Alford plea is unpersuasive. North Carolina v. Alford , 400 U.S.
25 (1970), holds that “an express admission of guilt” is “not a constitutional
requisite to the imposition of criminal penalty.” Id. at 37; see also United States
v. Maez , 915 F.2d 1466, 1468 (10th Cir. 1990) (“Under Alford , a defendant may
enter a plea of guilty to a charged offense, although he does not admit that he
committed the charged offense.”). The unstated premise of Candelaria’s
14 argument is that there was a meaningful difference between an Alford plea and a
no contest plea in his case. This is incorrect. Candelaria knew that a no contest
plea and an Alford plea were “basically the same thing,” see Tr. 2, at 15, entered
the former in light of the evidence prosecutors had assembled against him, and
did not expressly admit that he committed the charged acts during the plea
hearing. The Alford Court itself explained that there is no material difference
between “a plea that refuses to admit commission of the criminal act and a plea
containing a protestation of innocence when . . . a defendant intelligently
concludes that his interests require entry of a guilty plea and the record before the
judge contains strong evidence of actual guilt.” 400 U.S. at 37; see also id.
(noting that the denomination of “guilty” rather than “nolo contendere” is
insignificant in some circumstances because “the Constitution is concerned with
the practical consequences, not the formal categorizations, of state law”).
Equally unavailing is Candelaria’s argument that Curtis provided
ineffective assistance by failing to conduct an adequate investigation. Once
more, Strickland provides the relevant legal framework:
[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate
15 must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.
466 U.S. at 690-91; accord Miles , 61 F.3d at 1475; Romero v. Tansy , 46 F.3d
1024, 1029 (10th Cir. 1995). In the case at hand, Curtis evaluated the
government’s evidence and Candelaria’s potential defenses using police reports
and information gleaned from the preliminary hearing. He also met four or five
times with Candelaria to discuss the case. Nothing in the record suggests that
Curtis’ decision to rely exclusively on this information was unreasonable under
the circumstances. This alone is fatal to Candelaria’s argument. Cf. United
States v. Estrada , 849 F.2d 1304, 1307 (10th Cir. 1988) (finding that an
attorney’s decision “not to make a more extensive investigation” was reasonable
because the limited information possessed by the attorney was “sufficient to
determine the necessary breadth of the investigation”). Additionally, Candelaria
has not even attempted to identify an important witness or a potential defense
that was overlooked by Curtis. This, too, supports the denial of Candelaria’s
petition. Pre-AEDPA decisions applying a less deferential standard of review
demonstrate that an ineffective assistance claim must fail when the petitioner
cannot identify the evidence that should have been discovered or how such
evidence would have affected the outcome of his case. See Hatch v. Oklahoma ,
58 F.3d 1447, 1457 (10th Cir. 1995) (rejecting an ineffective assistance claim
because the petitioner did not state “what exculpatory evidence an adequate
16 investigation would have discovered or how this evidence would have affected
the outcome” of a particular phase of trial); Moore v. Reynolds , 153 F.3d 1086,
1098 (10th Cir. 1998) (rejecting a similar claim because the petitioner conceded
he “lack[ed] factual back-up” to show what might have been discovered if his
counsel had conducted a guilt-phase investigation), cert. denied , 119 S. Ct. 1266
(1999).
Candelaria’s final argument – that he received ineffective assistance
because Curtis failed to advise him of the possibility of an enhanced sentence –
fares no better. Curtis acknowledged that he did not discuss with Candelaria the
possibility that his sentence could be increased by four years based on
aggravating circumstances. Curtis stated that he only discussed a 12-year
sentence because he did not believe the prosecution could show that aggravating
circumstances required an enhanced penalty. See Tr. 1 at 15-16. It is true that a
plea may be involuntary if an attorney “materially misinforms the defendant of
the consequences of the plea or the court’s probable disposition.” Laycock , 880
F.2d at 1186; accord Carr , 80 F.3d at 418. Here, however, Curtis’ prediction of a
12-year sentence was accurate. See Tr. 3 at 25 (reflecting that Judge Onuska
rejected the prosecution’s attempt to increase Candelaria’s sentence to 16 years).
In any case, “[a] miscalculation or erroneous sentence estimation by defense
counsel is not a constitutionally deficient performance rising to the level of
17 ineffective assistance of counsel.” United States v. Gordon , 4 F.3d 1567, 1570
(10th Cir. 1993); accord Lasiter , 89 F.3d at 703. Further, Judge Eastburn
informed Candelaria of the possibility of a 16-year sentence before Candelaria
agreed to plead no contest. Candelaria’s bald assertion that he would have gone
to trial if Curtis had mentioned a four-year enhancement prior to the plea hearing
is insufficient to sustain an ineffective assistance claim. Cf. Gordon , 4 F.3d at
1571 (holding that a defendant cannot show prejudice by making the “mere
allegation” that “but for [his] counsel’s failure to inform him about the use of
relevant conduct in sentencing, he would have insisted on going to trial”).
The judgment of the district court is AFFIRMED.
Entered for the Court
Mary Beck Briscoe Circuit Judge