IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED JANUARY 1998 SESSION February 2, 1999
Cecil Crowson, Jr. Appellate C ourt Clerk
JORGE ARIEL SANJINES ) ) C.C.A. NO. 03C01-9706-CR-00229 Appellant ) ) HAMILTON COUNTY v. ) ) HONORABLE STEVEN BEVIL STATE OF TENNESSEE ) ) (Post Conviction) Appellee. ) )
For the Appellant: For the Appellee:
Robert N. Meeks John Knox Walkup P.O. Box 8086 Attorney General & Reporter Chattanooga, TN. 37414 (on post-conviction) Sandy C. Patrick Assistant Attorney General 2d Floor Cordell Hull Building 425 Fifth Avenue North Nashville, TN. 37243-0943
William H. Cox, III. District Attorney General
Rebecca J. Stern Assistant District Attorney General Third Floor, Courts Building Chattanooga, TN. 37402
OPINION FILED:_______________________
AFFIRMED IN PART; REVERSED IN PART
WILLIAM M. BARKER, SPECIAL JUDGE OPINION
The appellant, Jorge Ariel Sanjines, appeals as of right from the Hamilton
County Criminal Court’s dismissal of his petition for post-conviction relief. He raises
the following issues for review:
(1) Whether his trial counsel provided effective assistance in preparing his defense and in advising him to enter guilty pleas;
(2) Whether the prosecution committed misconduct by withholding Brady evidence, interfering with defense counsels’ investigation, and charging appellant with two inchoate offenses, attempted murder and conspiracy to commit murder, for the same criminal objective against Ms. Sanjines;
(3) Whether the appellant entered voluntary and knowing guilty pleas following the advice of counsel and the Rule 11 procedure;
(4) Whether the appellant was afforded due process of law by the trial court’s denial of pre-trial bond, the trial court’s acceptance of appellant’s guilty pleas, and appellant’s absence from a hearing on a pre-trial motion for continuance; and
(5) Whether the trial court lacked subject matter jurisdiction to accept appellant’s guilty pleas as a result of an indictment charging the appellant with both attempted murder and conspiracy to commit murder of Gina Sanjines.1
The record reflects that the appellant did not raise prosecutorial misconduct
(Issue 2) or due process violations pertaining to the motion for a continuance (Issue 4)
in either his pro se or amended post-conviction petitions. The appellant has offered
no reason why those issues were omitted from his petitions, and we conclude that
they are waived. Tenn. Code Ann. § 40-30-206 (1995).
After a careful review of the remaining issues, we find that the appellant was
improperly convicted of multiple inchoate offenses, attempted murder and conspiracy
to commit murder, for the criminal conduct against his ex-wife, Gina Sanjines. Tenn.
Code Ann. § 39-12-106(a) (Supp. 1994). Neither the defense nor the State
considered section 39-12-106(a) when they constructed the plea agreement in this
case. We conclude that the error was prejudicial and, accordingly, reverse the
1 This final c onte ntion was raise d in ap pellan t’s su pplem enta l brief o n app eal. T he ap pellan t did not in clud e this issue in his p ost-c onvic tion p etition s. Ho weve r, an is sue of su bjec t ma tter ju risdic tion is not waiva ble and w e will addres s it sua sp onte .
2 conviction of attempted murder. 2 The remaining convictions and sentences are
affirmed.
BACKGROUND
In 1995, the appellant pled guilty to the first degree murder of Virgil Schrag,
attempted first degree murder of Ms. Sanjines, and conspiracy to commit first degree
murder.3 The guilty pleas were supported by evidence that the appellant had hired
one Jeremy Ingram to kill Ms. Sanjines and her then boyfriend, Mr. Schrag. Beginning
in Summer 1992, the appellant planned the murders with Mr. Ingram and Amy
Marcum, both of whom were employees at appellant’s restaurant.4 Mr. Ingram carried
out the criminal plan in March 1994, by shooting both Ms. Sanjines and Mr. Schrag.
Ms. Sanjines survived the shooting with injuries; however, Mr. Schrag died almost
instantly from gunshot wounds.
Pursuant to a plea agreement, the appellant was sentenced to life
imprisonment with the possibility of parole for first degree murder, twenty five (25)
years for attempted murder, and twenty five (25) years for conspiracy to commit
murder. The twenty five (25) year sentences for attempted murder and conspiracy
were ordered to run concurrently to each other and consecutively to the life sentence.
No direct appeal was taken from the trial court’s judgment.
The appellant, thereafter, filed a pro se petition for post-conviction relief
challenging the validity of his guilty pleas and contending that his trial counsel were
ineffective in failing to adequately prepare his case and in coercing him to plead guilty.
Through a newly retained counsel, the appellant filed two amended post-conviction
2 The e vidence was su fficient to su pport bo th the con viction of atte mpte d mu rder and consp iracy. W e hav e elec ted to reve rse th e con viction of atte mp ted m urde r to re me dy the error unde r Te nn. C ode Ann. § 39-12-106(a) (Sup p. 1994).
3 The record reflects that the indictment included one count of conspiracy. Both victims, Ms. Sanjine s and M r. Schra g, were inc luded in tha t count.
4 Both M r. Ingram and M s. Marc um w ere indicte d for their re spective involvem ent in the cr imes . Pursu ant to plea a greem ents, they en tered gu ilty pleas and a greed to testify agains t the appe llant.
3 petitions raising the above grounds for relief and further alleging that the trial court did
not properly follow Rule 11 procedures at the guilty plea hearing.
At the post-conviction hearing, counsel William Ortwein and John Morgan both
testified that they conducted appellant’s defense in a team effort with attorney Chris
Helton and investigator William Dipillo. The defense interviewed over thirty (30)
potential witnesses including Jeremy Ingram, Amy Marcum, and members of
appellant’s family. Mr. Dipillo and Mr. Morgan met with the appellant on a weekly
basis to discuss the continuing investigation and to review the evidence. The
investigation entailed interviewing potential witnesses for both the State and the
defense, reviewing the crime scene, and reviewing the prosecution’s entire file on
appellant’s case.
Evidence against the appellant included statements and proposed testimony of
Amy Marcum and Jeremy Ingram, implicating the appellant as a primary conspirator in
the plot to kill Ms. Sanjines and Mr. Schrag. Both Ms. Marcum and Mr. Ingram
entered into plea agreements with the State and planned to testify against the
appellant. Other witnesses, including members of appellant’s family, were prepared to
testify that they had heard the appellant threaten to kill Ms. Sanjines and had heard
the appellant talk to Mr. Ingram by telephone.5
Defense counsel were also confronted with evidence of appellant’s motive to
kill the victims. Prior to the shootings, the appellant and Ms. Sanjines had ended their
marriage and were engaged in a heated dispute over the custody of their children.
Appellant’s children made statements to counsel revealing that the appellant had
physically abused Ms. Sanjines in the past. Moreover, there was evidence that the
appellant was angry at Ms. Sanjines because of their custody dispute and because of
5 The appellant’s wireless telephone records indicated that he had made several long distance telephone calls to Mr. Ingram near the time of the shooting. In addition, the appellant’s son, Nicholas Sanjines, observed the appellant talk to Mr. Ingram by telephone on the day of the murder. Investigator Dipillo interview ed Nich olas for the defens e.
4 her romance with Mr. Schrag. The appellant had stated that he should hire someone
to kill his wife.6
Mr. Ortwein testified that the defense team discussed possible theories and
strategies to defend the appellant against the incriminating evidence. One proposed
theory was that Ms. Sanjines’ family in Washington, D.C. had hired someone to
commit the killings. The appellant raised that theory based upon his apparent belief
that Ms. Sanjines was terminally ill and that her family wanted to end her suffering.
Another proposed theory was that Ms. Marcum had orchestrated the entire murder
scheme because she was in love with the appellant and wanted Ms. Sanjines out of
his life. Mr. Ortwein testified that the appellant would not allow the defense to pursue
any theory that further implicated Ms. Marcum in the crimes.
Both Mr. Ortwein and Mr. Morgan testified that the appellant was fully informed
and involved in the development of his case. The appellant participated in
discussions of the evidence and the possible strategies for dealing with the evidence.
However, he did not allow counsel to negotiate a plea agreement with the prosecution
until a few days before trial. Appellant’s counsel testified that they strongly
encouraged the appellant to plead guilty in light of the overwhelming evidence and the
State’s notice of intent to seek the death penalty.
The appellant was also advised to enter into a plea agreement by John Oliva,
then attorney with the Capital Case Resource Center in Nashville. Mr. Oliva met with
the appellant by permission and informed him of the procedures and lifestyle of prison
inmates on death row. Mr. Oliva told the appellant that the chances of a death
sentence in his case were great because of the incriminating evidence and the
likelihood of a first degree murder conviction. The appellant indicated to Mr. Oliva that
he understood the risks, but remained committed to his plea of not guilty.
6 Kristine Kennedy, a potential witness for the prosecution, overheard the appellant say that he should hire someone to kill his wife. Additionally, Mr. Dipillo interviewed a friend of the appellant who stated tha t he and th e appe llant had disc ussed the idea of having the ir wives killed.
5 Defense counsel met with the appellant approximately one week before the
scheduled date of trial to again advise him to plead guilty. The defense team had
interviewed co-conspirators Mr. Ingram and Ms. Marcus and had obtained other
evidence from their investigation. Mr. Ortwein testified that they discussed the
strengths and weaknesses of the case so that the appellant could make an informed
decision about pursuing a plea agreement. Counsels’ advice to the appellant was to
enter into an agreement and avoid a possible death sentence.
The appellant testified at the evidentiary hearing that counsel coerced him into
pleading guilty because they were unprepared for trial. He stated that counsels’ lack
of preparation was reflected in a motion for a continuance filed shortly before the
scheduled date of trial. Both Mr. Ortwein and Mr. Morgan testified that they filed a
motion for a continuance in response to the surprise discovery of a tape recorded
conversation between the appellant and Ms. Marcum.7 Fearing that the tapes
contained incriminating evidence, counsel sought additional time to deal with the
newly discovered information.8 The motion was denied a few days before the
appellant agreed to plead guilty.
The trial court accredited the testimony of appellant’s counsel and dismissed
the post-conviction petitions. The trial court reviewed the record from the guilty plea
hearings and found that the appellant was fully informed of his rights and the
consequences of entering guilty pleas. Moreover, the court found no evidence of
ineffective assistance of counsel and determined that, based upon appellant’s
education and position as a medical doctor, he completely understood the nature of
the criminal charges, the weight of the incriminating evidence against him, and his
rights associated with a jury trial.
7 Ms. Mar cum had s urep ticiou sly rec orde d her telep hon e con vers ation s with the a ppe llant w hile the two were in police custody. The appellant’s conversations with Ms. Marcum were against the advice of his coun sel.
8 Mr. Ortwein testified that the defense team had prepared its trial strategy and had subpoenaed witnesses before the tape recordings were discovered.
6 DISCUSSION
The appellant first contends that his counsel were ineffective in failing to
prepare his defense. He argues that counsel were ineffective in their: (1) failure to
investigate evidence and prepare defense strategy; (2) failure to review Tenn. Code
Ann. § 39-12-106, dealing with multiple convictions of inchoate offenses; (3) failure to
file a motion to suppress tape recorded conversations; (4) failure to appeal the trial
court’s order denying pre-trial bond; and (5) failure to accurately inform appellant
about the nature and consequences of his guilty pleas.
We conclude that counsel should have reviewed Tenn. Code Ann. § 39-12-106
and relied upon it in appellant’s defense. The appellant was prejudiced by this error,
and the conviction of attempted murder is reversed. The remaining claims of
ineffectiveness are without merit.
To prevail on a claim of ineffective assistance of counsel in this proceeding, the
appellant must prove by clear and convincing evidence9 that the advice or services
provided by his counsel fell below the range of competence demanded of attorneys in
criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Furthermore, he
must demonstrate prejudice by proving that, but for counsels’ incompetence, he would
not have pled guilty and would have insisted upon going to trial. Hill v. Lockart, 474
U.S. 52, 59 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985); Bankston v. State, 815
S.W.2d 213, 215 (Tenn. Crim. App. 1991), per. app. denied (Tenn. July 1, 1991).
The appellant first argues that counsel were ineffective in failing to investigate
evidence and possible defense theories. He contends that counsel coerced him into
pleading guilty in part because they were not prepared for trial.
The trial court reviewed the evidence and found nothing in counsels’
investigation or advice that fell below the level of competence demanded of attorneys
in criminal cases. That determination is conclusive on appeal and will not be
9 Tenn. Code A nn. § 40-30-210(f) (Supp. 1996).
7 overturned unless the evidence preponderates against the judgment. State v. Buford,
666 S.W.2d 473, 475 (Tenn. Crim. App. 1983). We conclude that the evidence
supports the trial court’s finding. Appellant’s counsel conducted a thorough
investigation of the case and informed the appellant about the overwhelming evidence
against him. With that evidence in mind, counsel competently advised the appellant
that a plea agreement was the best way to avoid a possible death sentence.
The appellant next argues that his counsel were ineffective in failing to review
Tenn. Code Ann. § 39-12-106 (Supp. 1994), dealing with multiple convictions of
inchoate offenses. He argues that defense counsel should have challenged the
multiple count indictment under section 39-12-106(a), and prevented him from
pleading guilty to attempted murder and conspiracy.
There was no basis for challenging the indictment in this case. Each count in
the indictment was supported by evidence sufficient for review by a trier of fact. If the
case had gone to trial, the State could have elected which of the two inchoate
offenses to present to the jury. 10 Therefore, counsels’ decision to focus on the
possible convictions and sentences, instead of contesting the indictment, was both
reasonable and competent.
The appellant, however, is correct in stating that under Tenn. Code Ann. § 39-
12-106(a), he could not be convicted of both attempted murder and conspiracy for the
criminal conduct against Ms. Sanjines. The text of section 39-12-106(a) reads: “A
person may not be convicted of more than one (1) of the offenses of criminal attempt,
solicitation, or conspiracy for conduct designed to commit or to culminate in the
commission of the same offense.”
The indictment in this case included three counts: (1) conspiracy to commit
murder of Mr. Schrag and Ms. Sanjines, (2) attempted murder of Ms. Sanjines, and (3)
first degree murder of Mr. Schrag. Appellant’s counsel testified at the evidentiary
10 In addition, the State could have removed Ms. Sanjines’ name from the conspiracy count and procee ded on all three cou nts in the ind ictmen t.
8 hearing that they did not rely on Tenn. Code Ann. § 39-12-106 to contest the charges
against the appellant. Consequently, the appellant entered into a plea agreement that
included all three counts of the indictment.
Counsel should have advised and defended the appellant under Tenn. Code
Ann. § 39-12-106(a). We acknowledge that counsels’ primary concern under the
great weight of incriminating evidence was to avoid the death penalty. In that respect,
counsel were effective and instrumental in saving appellant’s life. Nevertheless, the
plea agreement, as constructed by both the State and the defense, included a
conviction that ran afoul of our criminal law. Tenn. Code Ann. § 39-12-106(a) (Supp.
1994). The conviction of attempted murder is, therefore, reversed.
The appellant next argues that counsel were ineffective in failing to file a motion
to suppress his tape recorded conversations with Ms. Marcum. The trial court
determined that appellant’s counsel made a tactical decision not to file a motion to
suppress after they examined the tape recordings and found them to be of limited
evidentiary value. Mr. Ortwein testified that no legal ground existed to support a
motion to suppress because Ms. Marcum had recorded the tapes at the request of her
attorney, without coercion or involvement from the State. Appellant’s counsel planned
to object to the relevancy of the tape recordings if the prosecution attempted to
introduce them at trial.
Counsels’ decision not to file a motion to suppress must be reviewed with
deference and from counsels’ perspective at that time. Strickland v. Washington, 466
U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed. 674 (1984); Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982). Every effort is made to avoid judging counsels’
performance from hindsight; however, we must ensure that the appellant was afforded
effective and competent assistance. Hellard, 629 S.W.2d at 9.
The evidence shows that counsel examined the tape recordings and found no
basis or need to challenge them before trial. The recordings did not factor into
appellant’s decision to plead guilty and they were not used as evidence against him.
9 Under those circumstances, we conclude that the defense strategy concerning the
tape recordings was not ineffective.11
The appellant next argues that his counsel were ineffective in failing to appeal
the trial court’s order denying pre-trial bond. He contends that the trial court’s order
discriminated against his national origin and should have been challenged by an
interlocutory appeal.
The trial court denied pre-trial bond in this case based upon: (1) the court’s
finding that the appellant was at high risk to flee to his home country of Bolivia; and (2)
the State’s notice of intent to seek the death penalty upon a conviction of first degree
murder. Appellant’s counsel found no basis to challenge that discretionary ruling, and
chose to spend their time preparing a defense to the criminal charges. W e give
deference to counsels’ tactical decision and find no ineffectiveness. See Hellard 629
S.W.2d at 9.
The appellant also argues that his counsel were ineffective in failing to
accurately inform him about the nature and consequences of his guilty pleas. He
contends that counsel gave him false information about the plea negotiations and the
plea agreement.
The evidence shows that appellant’s counsel met with him on several
occasions to discuss the ongoing plea negotiations. The appellant testified on his own
behalf that counsel reviewed with him various plea options, including a possible Alford
plea.12 According to the appellant, he authorized his counsel to negotiate an
agreement in which he would enter an Alford plea and avoid a possible death penalty.
11 The record reflects that appellant’s counsel filed a motion in limine to suppress a tape recorded conversation between the appellant and Mr. Ingram. The basis for that motion and the trial court’s ru ling were n ot included in the reco rd.
12 A defendant may enter a guilty plea and still protest his or her innocence if, within the discretion of the trial court, the plea is in the defendant’s best interest. This plea is recognized as an Alford plea. See North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 167, 27 L.Ed.2d 162 (19 70); Dortch v. State, 705 S.W .2d 687, 6 89 (Te nn. Crim . App. 198 5).
10 The appellant testified that he believed he was entering an Alford plea even though
the trial court never discussed such a plea with him at the Rule 11 hearing.
Appellant’s counsel testified that although they discussed the possibility of an
Alford plea with the appellant, they did not pursue that option during the negotiations.
The evidence is unclear whether counsel proposed an Alford plea to the prosecution.
However, the District Attorney testified at the evidentiary hearing that the prosecution
would have rejected any proposed Alford plea in appellant’s case.
Counsel testified that during the negotiations they were most concerned with
the degree of punishment and the length of prison sentence. Once an agreement was
reached, counsel reviewed the plea papers and the Rule 11 procedure with the
appellant. Counsel testified that they never told the appellant that the agreement
included an Alford plea. The appellant signed the plea papers and did not question
whether he was entering an Alford plea. He pled guilty to all three counts without any
mention or protest of innocence.
The trial court accredited the testimony of appellant’s counsel and found that
counsel provided effective assistance during the plea negotiations. We affirm that
finding. State v. Buford, 666 S.W.2d 473, 475 (Tenn. Crim. App. 1983). The
evidence shows that the appellant had various opportunities to question the plea
agreement both during meetings with his counsel and during the plea hearing. The
appellant did not question his guilty plea, but instead signed the plea papers after
counsel informed him of the agreement and the Rule 11 procedure.
Defense counsel testified that during the negotiation process, appellant’s
primary concerns were the length of his sentence, the acceptance of his family, and
visitation privileges for his children. Under the weight of the incriminating evidence,
counsel performed reasonably in protecting the appellant’s interests and in avoiding a
possible death sentence. The appellant has failed to prove that his counsel were
ineffective in that respect. Moreover, there has been no sufficient showing of
prejudice.
11 II.
The appellant next contends that his guilty pleas were not entered voluntarily
and knowingly. He argues that defense counsel coerced him into pleading guilty, and
that the trial court failed to comply with Rule 11 of the Tennessee Rules of Criminal
Procedure.
The due process clause of the federal constitution requires that guilty pleas be
knowing and voluntary. Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712,
23 L.Ed. 274 (1969); Johnson v. State, 834 S.W.2d 922, 923 (Tenn. 1992). A
defendant enters a knowing and voluntary plea when he or she understands the rights
and circumstances involved and nevertheless chooses to waive or relinquish those
rights. State v. Mackey, 553 S.W.2d 337, 340 (Tenn. 1977). There must be an
affirmative showing in the record that the defendant understood his or her rights and
voluntarily waived those rights by pleading guilty. Id. at 340-42.
Aside from the error under Tenn. Code Ann. § 39-12-106(a), the record shows
that the appellant voluntarily and knowingly entered the plea agreement with the State.
The appellant was fully informed about the charges of first degree murder, attempted
murder, and conspiracy to commit first degree murder. He admitted at the evidentiary
hearing that he read the indictment and signed the necessary papers before the guilty
plea hearing.
At the plea hearing, the trial court followed the guidelines under Rule 11 of the
Tennessee Rules of Criminal Procedure.13 The prosecution first provided a factual
basis to support appellant’s guilty pleas. Both the prosecution and the defense
stipulated that had the case gone to trial, the evidence would have shown that the
appellant paid Mr. Ingram $10,000 dollars to kill Ms. Sanjines and Mr. Schrag. The
prosecution had evidence that appellant began devising a criminal plan to kill the
victims in 1992, after he and Ms. Sanjines divorced. With the assistance of Ms.
13 The record contains a verbatim transcript of appellant’s guilty plea hearing.
12 Marcum and Mr. Ingram, the appellant invoked the plan that resulted in the murder of
Mr. Schrag and the injuries to Ms. Sanjines.
The trial court provided the required litany of information to the appellant,
including the nature and the elements of the criminal charges, the State’s burden of
proof on each charge, the possible sentences for each charge, the privilege against
self incrimination, the right to a trial by jury, and the right to confront his accusers. The
appellant responded that he understood the criminal charges and his rights associated
with a jury trial. He further stated that his counsel did everything they could have done
to prepare his defense. Counsel explained to the appellant the evidence, the
indictment, the plea procedures, and his constitutional rights. The appellant informed
the trial court that he was of sound mind and that he had no questions or problems
with the plea procedure.
The trial court reviewed the guilty plea hearing and determined that the
appellant was well-educated and capable of understanding his rights, the nature of the
procedures, and the consequences of entering guilty pleas. We affirm that finding.
The record shows that the appellant voluntarily entered a plea agreement to
avoid the death penalty and to acquire the best possible sentence under the weight of
the incriminating evidence. The plea agreement was an all-inclusive deal that
mistakenly included an unlawful conviction under Tenn. Code Ann. § 39-12-106(a).
Having addressed that error, we conclude that the plea agreement is otherwise valid.
The appellant has failed to prove by clear and convincing evidence that his guilty
pleas were unknowing and involuntary.
III.
The appellant next contends that under Tenn. Code Ann. § 39-12-106(a)
(Supp. 1994), he was improperly indicted on attempted murder and conspiracy to
commit murder, relating to Ms. Sanjines. He argues that the invalid indictment
deprived the trial court of subject matter jurisdiction to accept his guilty pleas.
13 This issue is without merit.
The record shows that the appellant did not challenge the indictment in his pro
se or amended post-conviction petitions. He raised this issue for the first time during
the evidentiary hearing and in his appeal to this Court. Nevertheless, in addressing
this issue on its merits, we conclude that the indictment was valid. As previously
addressed, Tenn. Code Ann. § 39-12-106(a) does not preclude a defendant from
being indicted on multiple inchoate offenses for the same criminal conduct.
We otherwise find no basis for challenging the indictment in this case. Each
count in the indictment was supported by evidence sufficient to present the case to the
trier of fact. Under that indictment, the trial court had subject matter jurisdiction both
to hear the case and to accept appellant’s guilty pleas.
CONCLUSION
Having reviewed the evidence and the plea agreement, we conclude that the
plea agreement was a package deal that saved the appellant from a possible death
sentence. Defense counsel were effective in investigating the evidence and in
advising the appellant to plead guilty. Nevertheless, the plea agreement contains an
unlawful conviction that must be redressed to comport with our criminal law. Tenn.
Code Ann. § 39-12-106(a) (Supp. 1994). We, therefore, reverse the conviction of
attempted murder. The remaining convictions of first degree murder and conspiracy
to commit first degree murder, and the effective sentence of life imprisonment plus
twenty five (25) years, are affirmed.
__________________________________ WILLIAM M. BARKER, SPECIAL JUDGE
CONCUR:
______________________________ GARY R. WADE, Presiding Judge
______________________________ JOSEPH M. TIPTON, JUDGE