In the Missouri Court of Appeals Eastern District DIVISION FOUR
) No. ED110649 ) IN THE INTEREST OF: K.M.F. ) Appeal from the Circuit Court of ) St. Louis County ) ) Honorable Jason D. Dodson ) ) ) Filed: May 23, 2023
Introduction
K.M.F. (“Appellant”) appeals the judgment of the Juvenile Division of the Circuit Court
of St. Louis County granting the Juvenile Officer’s motion to dismiss its juvenile petition and
certify Appellant for prosecution as an adult under general law. Appellant raises one point on
appeal, arguing the criminal ineffectiveness of counsel standard should apply to juvenile
certification hearings and his counsel failed to meet this standard. Because Appellant does not
demonstrate a reasonable probability that, but for his counsel's alleged errors, the result of the
proceeding would have been different, we deny Point I.
We affirm.
Factual and Procedural History
Appellant was born on February 6, 2004. On November 11, 2021, the Juvenile Officer of
St. Louis County filed a petition in the Juvenile Division of the Circuit Court of St. Louis County alleging on November 5, 2021, Appellant committed, if he were an adult, first degree tampering,
a class D felony under section 569.080.1 The petition further alleged on November 10, 2021,
Appellant committed, if he were an adult: first degree murder, a class A felony under section
565.020.1, RSMo. 2016; unlawful use of a weapon, a class A felony under section 571.030; and
resisting arrest, a class E felony under section 575.150.
On November 12, 2021, the Juvenile Officer moved to dismiss the petition to allow
prosecution of Appellant under the general law. On November 15, 2021, the Juvenile Officer
filed a report recommending Appellant’s detention because he is a danger to the community or
its property. The report alleged Appellant “knowingly possessed and/or unlawfully operated a
motor vehicle” without the owner’s consent, and, after deliberation, shot and killed an
acquaintance of his. The report stated the victim’s mother “expressed concerns of safety for
herself and her family” and “it is unlikely that a district will allow [Appellant] onto school
property due to the safety concerns for other students.” The report described a history of
Appellant absconding from school, court-ordered placements, residential placements, and his
mother’s custody. The report alleged on April 18, 2021, Appellant attacked staff and others and
escaped a Division of Youth Services residential program.
The juvenile court held a certification hearing on March 16, 2022. Appellant was
eighteen.2 Deputy Juvenile Officer Deborah Hausler testified in favor of certification. Hausler
was assigned to Appellant from September 2017 through April 2019 and re-assigned to him on
November 12, 2021. Hausler based her testimony on “previous court reports, previous school
records, psychological reports,” detention behavior logs, and information obtained from
Appellant and his mother. On direct examination, Hausler testified Appellant’s actions on
1 All statutory citations are to RSMo Cum. Supp. 2021, unless otherwise indicated. 2 Appellant turned nineteen on February 6, 2023.
2 November 10, 2021, constituted “an extremely serious offense” involving viciousness, force, and
violence against a person resulting in injury and death. Hausler testified, according to the police
report, Appellant “was in a stolen vehicle and pulled up and to the sidewalk and pointed a
firearm out of the window and shot the victim that was standing on the sidewalk.” Hausler
testified Appellant knew the victim because he was the boyfriend of Appellant’s aunt, and
Appellant killed him because he was “in possession of another weapon that [Appellant] wanted
to have.” Hausler testified the killing took place near an elementary school, and police “located
several weapons in one of the back bedrooms” of Appellant’s home. Hausler stated Appellant
has an “above average” referral history, including twenty-nine referrals in St. Louis County and
seven referrals in St. Louis City.3 Hausler testified several of these referrals were “screened
insufficient,” but there were “several that were handled formally,” including “[p]ossession of
marijuana, tampering, violation of court orders on multiple occasions, possession of a firearm
and failure to appear.” Hausler testified Appellant “presents as very sophisticated.”
Hausler testified she considered all available programs and facilities in the juvenile
system and determined none were suitable for Appellant. Because of Appellant’s age, Hausler
testified the Division of Youth Services was not a proper placement and there were “no current
services under the juvenile office” available for an eighteen-year-old. Hausler testified placement
with a private residential treatment facility was not appropriate because he absconded in the past,
and “referrals were made to Marygrove and Great Circle; however, they rejected his referrals and
would not accept him into their program.” On cross examination by Appellant’s counsel, Hausler
3 Both Appellant and the State, citing the same page of Hausler’s direct examination, state the reverse: Appellant had twenty-nine referrals in St. Louis City and seven referrals in St. Louis County. Hausler testified “there were seven referrals to the 22nd juvenile office” and in “the 21st Circuit there are 29 referrals that have been received.” Hausler’s testimony is consistent with the Juvenile Officer’s report, which lists twenty-seven referrals in the 21st Circuit and seven referrals in the 22nd Circuit. In its judgment, the juvenile court found Appellant “has generated 28 referrals to the St. Louis County Juvenile Office and 7 to the 22 nd Circuit’s Juvenile Office.” Missouri’s 21st Judicial Circuit sits in St. Louis County and the 22nd Judicial Circuit sits in St. Louis City.
3 testified Appellant has attention-deficit/hyperactivity disorder (“ADHD”), a learning disability
for which he was prescribed medication, and an individualized education plan at school. Hausler
agreed Appellant has characteristics consistent with people with ADHD, including, as described
by Appellant’s counsel, impulsivity and “compulsory behavior, like they do things on impulse
without giving it forethought or second thought . . . . ”
On May 18, 2022, the juvenile court dismissed the Juvenile Officer’s petition and
certified Appellant for prosecution as an adult under general law. The juvenile court found the
Juvenile Officer’s allegations “are the most serious in nature and clearly indicate a disregard for
human life and community safety,” and involved “viciousness, force and violence,” because
Appellant used a handgun to “shoot and kill the victim who was standing in front of an
elementary school.” The juvenile court stated the killing and use of a weapon “carry great weight
in the Court’s decision,” and the alleged offenses “are part of a repetitive pattern of offenses”
indicating Appellant “may be beyond rehabilitation under the juvenile code.”
The juvenile court found Appellant has twenty-eight referrals in St. Louis County and
seven more in St. Louis City, and he was “initially placed under this Court’s supervision for
trespassing, resisting arrest, stealing a firearm/explosive weapon, failure to appear, truancy and
being habitually absent from home.” The juvenile court found Appellant “has a history of
assaultive behavior, lack of consideration for the property of others, and a complete disregard for
compliance with court orders,” and his latest conduct demonstrated “the ultimate escalation in
the severity and violence” of his behavior.
The juvenile court described Appellant’s “extensive history” in the juvenile system. On
May 23, 2018, Appellant was placed under the juvenile court’s jurisdiction. Appellant was
placed in his mother’s custody, subject to the juvenile court’s intensive supervision program and
4 electronic monitoring, but the juvenile court “[a]lmost immediately” received notices Appellant
was away from home without the Juvenile Officer’s permission. On June 4, 2018, Appellant’s
mother placed him in an inpatient substance abuse facility, but Appellant removed his ankle
monitor and fled three days later. Appellant “remained on the run until he was admitted to the St.
Louis County Juvenile Detention Center on June 14, 2018 for allegedly riding in a stolen vehicle
and fleeing from the police.” Appellant was returned to a drug treatment facility, but he
absconded.
The juvenile court found, despite “various therapeutic and supportive services,”
Appellant’s “behavior did not improve.” Following a hearing on November 28, 2018, Appellant
fled and “remained on the run until December 5, 2018, when he was apprehended by St. Louis
County police as a possible suspect in a robbery.” Appellant attempted to escape the arresting
officers. On March 8, 2019, Appellant was released from detention to another facility. He
absconded until April 8, 2019, when police investigating a burglary arrested Appellant, who
matched a suspect’s description. On April 22, 2019, the juvenile court committed Appellant to
the Division of Youth Services. He absconded again.
The juvenile court found the evidence established Appellant is “an emotionally
sophisticated and physically mature 18-year-old.” The juvenile court found no placement,
program, or facility available under the juvenile code “would provide sufficient protection to the
community.” The juvenile court found jurisdiction and supervision by a deputy juvenile officer
inappropriate because of “the (most) serious nature of the pending allegations,” Appellant’s
“potential danger to the community,” and his “history that demonstrates a complete disregard for
court orders and services.” Parentheses original. Due to Appellant’s age, the juvenile court found
“there are no services or resources available to him that provide any meaningful opportunity for
5 rehabilitation.” The juvenile court found it “clear that protection of the community weighs in
favor of dismissal and transfer to the court of general jurisdiction.” Given “the seriousness and
particularly the violent and vicious nature of the offense,” Appellant’s age, “the limited time for
rehabilitating” him, and no evidence a facility could guarantee his confinement, the juvenile
court found “there are no reasonable prospects for rehabilitation under the Juvenile Code,” and
he is not “a proper subject to be dealt with under the provisions of the Juvenile Code.” The
juvenile court found it “considered the available evidence as to racial disparity with certification,
per section 211.071.6, RSMo.”
The juvenile court dismissed the Juvenile Officer’s petition, ordered Appellant
“transferred to the court of general jurisdiction for the purpose of such prosecution,” ordered
Appellant “released and discharged from the jurisdiction of the Juvenile Court,” and ordered a
“copy of the Petition and a copy of this Order be sent to the Prosecuting Attorney of St. Louis
County, Missouri.”
This appeal follows.
Standard of Review
A juvenile has the right to counsel at a certification hearing. J.N.W. v. Juv. Officer, 643
S.W.3d 618, 634 (Mo. App. W.D. 2022), transfer denied (Mar. 29, 2022), transfer denied (May
17, 2022) (quoting State v. Nathan, 404 S.W.3d 253, 260 (Mo. banc 2013)). This right “would be
hollow were there no accompanying requirement counsel be effective.” Id. (quoting D.C.M. v.
Pemiscot Cnty. Juv. Off., 578 S.W.3d 776, 782 (Mo. banc 2019)). A juvenile may raise a claim
of ineffective assistance of counsel on direct appeal. Id. at 634 (citing D.C.M., 578 S.W.3d at
782). What procedure should be followed when reviewing ineffective assistance of counsel
6 claims in juvenile cases is a question of law we review de novo. D.C.M., 578 S.W.3d at 782
(citing Grado v. State, 559 S.W.3d 888, 895 (Mo. banc 2018)).
Discussion
Appellant argues his counsel was ineffective at his juvenile certification hearing,
violating his statutory and due process rights to counsel. Interest of P.J.T., 643 S.W.3d 527, 533
(Mo. App. S.D. 2021), reh'g denied (Dec. 1, 2021), transfer denied (May 17, 2022) (citing
D.C.M., 578 S.W.3d at 782); § 211.211.1; Rule 115.01(a).4 Appellant argues the effectiveness of
his counsel should be assessed under the Strickland v. Washington standard applied to criminal
proceedings. 466 U.S. 668, 687 (1984). This standard requires Appellant demonstrate failure by
his counsel to exercise the level of skill and diligence a reasonably competent counsel would
have exercised in a similar situation and prejudice resulting from that failure. Parsons v. State,
574 S.W.3d 810, 816 (Mo. App. E.D. 2019) (citing Johnson v. State, 406 S.W.3d 892, 898–99
(Mo. banc 2013)). To establish prejudice, Appellant must demonstrate “a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694.
Appellant argues his counsel “was ineffective in failing to obtain and present evidence
showing [Appellant’s] lack of sophistication and amiability to treatment.” Appellant lists
substance abuse, his involvement with the juvenile system beginning when he was thirteen years
old, his father’s incarceration, and his cognitive disability as “mitigating” circumstances.
Appellant argues his counsel knew about his learning disability, but “did not appear to make any
effort to obtain or present evidence” on this issue, and “the only mention of [Appellant’s]
learning disability was a short part of counsel’s cross-examination” of Hausler.
4 All Rule citations are to the Missouri Supreme Court Rules (2022), unless otherwise indicated.
7 Appellant cites Wiggins v. Smith, which held an attorney’s investigation fell short of
professional standards where, among other problems, “counsel abandoned their investigation of
petitioner's background after having acquired only rudimentary knowledge of his history from a
narrow set of sources.” 539 U.S. 510, 524 (2003). Appellant also cites Porter v. McCollum,
which held an attorney’s representation was unreasonable where “counsel did not even take the
first step of interviewing witnesses or requesting records.” 558 U.S. 30, 39 (2009). Appellant
argues an investigation of his learning disability was important because “impaired intellectual
functioning is inherently mitigating.” Tennard v. Dretke, 542 U.S. 274, 287 (2004) (citing Atkins
v. Virginia, 536 U.S. 304, 316 (2002)). Appellant argues evidence of his traumatic childhood is
relevant because “defendants who commit criminal acts that are attributable to a disadvantaged
background” may be less culpable. Porter, 558 U.S. at 41 (quoting Penry v. Lynaugh, 492 U.S.
302, 319 (1989)).
Appellant argues he was prejudiced because “there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at
40 (quoting Strickland, 466 U.S. at 694). Appellant argues, like in Porter, he was prejudiced
because the judge and jury heard about the defendant’s “turbulent relationship with [the victim],
his crimes, and almost nothing else.” Id. at 41. Appellant argues the juvenile court heard about
his alleged violent offense, the firearms found at his house, his prior misconduct, and “the times
[Appellant] ran away from his placements.” “But other than a brief mention,” Appellant argues,
“the hearing court did not hear about [Appellant’s] learning disability or mental illness. The
hearing court heard hardly any mitigating evidence.”
The State agrees we should apply Strickland, but contends Appellant is not entitled to
relief because “counsel’s performance was not deficient in any way and, even if deficient, no
8 prejudice resulted therefrom as the [statutory factors] weigh heavily in favor of certification.”
The State cites our presumption counsel are adequate and their strategies are sound. Anderson v.
State, 66 S.W.3d 770, 775 (Mo. App. W.D. 2002) (citing State v. Simmons, 955 S.W.2d 729, 746
(Mo. banc 1997), as modified (Nov. 25, 1997)). At the certification hearing, the State notes
Appellant’s counsel made “the juvenile court aware of Appellant’s cognitive limitations through
her cross-examination of [Hausler].” The State argues Appellant’s counsel addressed his learning
disability competently and we must not use hindsight to assess counsel’s trial strategy.
Strickland, 466 U.S. at 689.
Even if Appellant’s counsel was ineffective, the State insists Appellant was not
prejudiced because there is not “a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Id. at 694. As in Strickland, the
State argues “the aggravating circumstances were so substantial that no substantial prejudice
resulted” from counsel’s allegedly deficient performance. Id. at 677. The State contends the ten
factors of section 211.071.6 weigh heavily in favor of certification, despite any “mitigating”
evidence that could have been introduced. The State underscores the violent nature of
Appellant’s alleged conduct and the repeated failures to rehabilitate Appellant. The State argues
Appellant’s “mitigating” evidence focuses on the sixth factor (assessing sophistication, maturity,
and living environment), but courts emphasize the first three factors and “the serious nature of
the crime is the dominant criterion among the ten factors.” Interest of T.D.S., 643 S.W.3d 510,
524 (Mo. App. E.D. 2021), reh'g and/or transfer denied (Dec. 6, 2021), transfer denied (May 17,
2022) (quoting State v. Thomas, 70 S.W.3d 496, 504 (Mo. App. E.D. 2002)). The State also
notes the juvenile court need not give equal weight to each factor. Id. at 523 (citing Thomas, 70
S.W.3d at 504).
9 The standard applied to claims of ineffective assistance of counsel at a juvenile
certification hearing is an “unresolved issue.” J.N.W., 643 S.W.3d at 635; see also P.J.T., 643
S.W.3d at 533 (quoting D.C.M., 578 S.W.3d at 784 n.11) (“Missouri law has not defined the
standard to be applied when determining whether a juvenile's counsel was effective.”). Either the
meaningful hearing standard applied in termination of parental rights cases or the Strickland
standard applied in adult criminal proceedings may be applicable. Id. In J.N.W., the Western
District declined to determine which standard applies because “[e]ven assuming the more
demanding Strickland standard applies,” the appellant could not establish ineffectiveness of
counsel. Id. at 635–36.
We take the same course here. Even assuming, as both parties request, Strickland applies
to claims of ineffectiveness of counsel at a juvenile certification hearing, Appellant has not
established his counsel was ineffective because he has not demonstrated he was prejudiced.
There is no reasonable probability, but for his counsel’s alleged failure to introduce evidence of
his ADHD, extensive history in the juvenile system, substance abuse, and his father’s
incarceration, the result of his certification hearing would have been different. Strickland, 466
U.S. at 694.
Appellant characterizes the evidence his counsel failed to present as “mitigating”
evidence. Mitigating evidence is evidence, such as life history and cognitive development, which
suggests a criminal defendant is less culpable for his actions. See Baumruk v. State, 364 S.W.3d
518, 536 (Mo. banc 2012); see also Taylor v. State, 262 S.W.3d 231, 250 (Mo. banc 2008). But a
certification hearing is not adjudicatory. Interest of D.M.M., 658 S.W.3d 594, 599 (Mo. App.
E.D. 2022) (citing T.D.S., 643 S.W.3d at 520). Certification does not decide guilt, innocence, or
culpability. J.N.W., 643 S.W.3d at 637 n.15. A certification hearing decides under which system
10 the juvenile will receive due process of law. T.D.S., 643 S.W.3d at 518. Mitigating evidence can,
and should, be presented for Appellant when he is prosecuted as an adult under general law. See
Taylor, 262 S.W.3d at 250. We will discuss Appellant’s arguments regarding his lack of
sophistication, amenability to treatment, substance abuse, family history, cognitive ability, and
learning disability in the context of a certification hearing under section 211.071.
The procedure to certify a juvenile for trial as an adult is set out in section 211.071.
T.D.S., 643 S.W.3d at 518. This section provides a non-exhaustive list of ten factors to consider,
including “the characteristics of the juvenile's offense; the juvenile's history, behavior, age, and
sophistication; the program and facilities available to the juvenile court; whether the child could
benefit from the programs available to the juvenile court; and racial disparity.” Id.
The first three factors contain some of the most critical considerations. Id. at 527 (citing
State v. Seidel, 764 S.W.2d 517, 519 (Mo. App. S.D. 1989)). The first factor assesses the
seriousness of the offense and the need to protect the community and “dominates our inquiry.”
Id. at 525 (citing Thomas, 70 S.W.3d at 504). Appellant is accused of “the most heinous of
crimes, homicide.” State v. Andrews, 329 S.W.3d 369, 385 (Mo. banc 2010), as modified on
denial of reh'g (Jan. 25, 2011) (Wolff, J., dissenting). Based on Hausler’s testimony that
Appellant shot his aunt’s boyfriend from a stolen vehicle, near a school, over a dispute about a
firearm, the juvenile court found the “offenses alleged are the most serious in nature and clearly
indicate a disregard for human life and community safety,” and “protection of the community
weighs in favor of dismissal.” § 211.071.6(1). For the second factor, assessing the presence of
viciousness, force, and violence, the juvenile court found Appellant’s alleged offenses “involve
viciousness, force and violence and involve the use of a lethal weapon, a handgun, which was
used to shoot and kill the victim who was standing in front of an elementary school . . . . ”
11 § 211.071.6(2). For the third factor, emphasizing crimes against the person (especially those
causing injury) over crimes against property, the juvenile court found “murder and unlawful use
of a weapon allegations are offenses against a person,” and “carry great weight in the Court’s
decision.” § 211.071.6(3).
For the fourth and fifth factors, assessing the juvenile’s record and history, the juvenile
court found Appellant’s alleged offenses “are part of a repetitive pattern of offenses” indicating
he “may be beyond rehabilitation under the juvenile code.” § 211.071.6(4). The juvenile court
noted Appellant’s extensive referral history in the juvenile system and his “history of assaultive
behavior, lack of consideration for the property of others, and a complete disregard for
compliance with court orders.” The juvenile court found Appellant “has an extensive history
with this Court,” and consistently escaped his placements. § 211.071.6(5).
For the sixth and seventh factors, assessing the “sophistication and maturity of the child
as determined by consideration of his or her home and environmental situation, emotional
condition and pattern of living,” and the juvenile’s age, the juvenile court found the “evidence
establishes that [Appellant] is an emotionally sophisticated and physically mature 18-year-old.”
§ 211.071.6(6)–(7). For the eighth and ninth factors, assessing the programs and facilities
available and whether the juvenile “can benefit from the treatment or rehabilitative programs
available to the juvenile court,” the juvenile court found “[n]o placement, program or facility
available to the Court for [Appellant’s] treatment under the juvenile code would provide
sufficient protection to the community.” The juvenile court cited the “(most) serious nature of
the pending allegations,” Appellant’s potential danger to the community, and “his history that
demonstrates a complete disregard for court orders and services.” Parentheses original. The
juvenile court found “due to [Appellant’s] age, there are no services or resources available to him
12 that provide any meaningful opportunity for rehabilitation.” § 211.071.6(8)–(9). For the tenth
factor, instructing courts to consider “[r]acial disparity in certification,” the juvenile court found
it “considered the available evidence as to racial disparity with certification,” and concluded
Appellant “is not a proper subject to be dealt with under the provisions of the Juvenile Code.”
§ 211.071.6(10).
The juvenile court therefore found each of the ten factors favor certification. Even if
Appellant’s counsel introduced evidence of a sympathetic background, Appellant has not shown
his counsel was ineffective under Strickland because he has not demonstrated “a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding would have
been different.” Anderson, 66 S.W.3d at 775 (quoting Simmons, 955 S.W.2d at 746). Although
the “criteria listed in section 211.071.6 are not exclusive and the juvenile court need not give
equal weight to each one,” the “first three factors contain some of the most critical considerations
in certification” and “the seriousness of the offense dominates our inquiry.” T.D.S., 643 S.W.3d
at 523–24, 27 (citing Thomas, 70 S.W.3d at 504). None of the first three factors consider the
juvenile’s background. § 211.071.6(1)–(3). Not only did the juvenile court find each of the first
three factors favor certification, it found every factor does.
Despite Appellant’s comparison, his case is remarkably different than Porter, in which
the U.S. Supreme Court found a defendant’s trial counsel was ineffective for failing to introduce
mitigating evidence. 558 U.S. at 41. Porter did not involve the statutory factors of section
211.071.6 and the Court found “[t]his is not a case in which the new evidence ‘would barely
have altered the sentencing profile presented to the sentencing judge.’” Id. (quoting Strickland,
466 U.S. at 700). The defendant in Porter listed several mitigating factors which could have
made a difference, including childhood physical abuse, a brain abnormality, and his “heroic
13 military service in two of the most critical—and horrific—battles of the Korean War.” 558 U.S.
at 41. The “mitigating” factors raised by Appellant are significantly less probative than those
presented in Porter. See State v. Roll, 942 S.W.2d 370, 374 (Mo. banc 1997) (citing State v.
Hunter, 840 S.W.2d 850, 868 (Mo. banc 1992), cert. denied, 509 U.S. 926 (1993)) (“Drug abuse
may or may not be considered a mitigating circumstance, depending on the facts of the case.”).
We are also unpersuaded by Appellant’s comparison to Wiggins, in which the U.S.
Supreme Court held a “reasonably competent attorney would have realized” pursuing leads on
mitigating factors was necessary, “particularly given the apparent absence of any aggravating
factors in petitioner's background.” 539 U.S. at 525. Like Porter, Wiggins did not involve the
statutory factors guiding the juvenile court’s decision in this case. Id. The Wiggins Court
clarified its decision is “distinguishable from our precedents,” such as Strickland, “in which we
have found limited investigations into mitigating evidence to be reasonable.” Id. (citing
Strickland, 466 U.S. at 699). In Strickland, the Court held unintroduced evidence “that numerous
people who knew respondent thought he was generally a good person and that a psychiatrist and
a psychologist believed he was under considerable emotional stress that did not rise to the level
of extreme disturbance” would not have made a meaningful difference in the defendant’s
defense, considering the aggravating circumstances of his crimes. 466 U.S. at 700.
Appellant’s counsel raised his learning disability at the certification hearing and elicited
testimony on cross-examination it could cause impulsive and compulsive behavior. Appellant
argues his counsel should have presented more “mitigating” evidence to the juvenile court, but
Appellant does not demonstrate this would have resulted in a different outcome. As Wiggins
explained, Strickland held counsel can “reasonably surmise” certain “character and
14 psychological evidence would be of little help.” 539 U.S. at 525 (quoting Strickland, 466 U.S. at
700).
Because Appellant does not demonstrate a reasonable probability the outcome of his
certification hearing would have been different, he does not demonstrate his counsel was
ineffective.
Point I is denied.
Conclusion
For the reasons stated above, we affirm.
_______________________________ Philip M. Hess, Judge
Kelly C. Broniec, P.J. and James M. Dowd, J. concur.