[Cite as State v. Facemire, 2025-Ohio-1500.]
IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY
STATE OF OHIO, CASE NOS. 2024-P-0068 2024-P-0069 Plaintiff-Appellee,
- vs - Criminal Appeals from the Court of Common Pleas SEBASTIAN T. FACEMIRE,
Defendant-Appellant. Trial Court Nos. 2024 CR 00275 2023 CR 01369
OPINION AND JUDGMENT ENTRY
Decided: April 28, 2025 Judgment: Affirmed in part, reversed in part, and remanded
Connie J. Lewandowski, Portage County Prosecutor, and Kristina K. Reilly, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Adam M. VanHo, 37 South Main Street, Suite 3, P.O. Box 157, Munroe Falls, OH 44262 (For Defendant-Appellant).
SCOTT LYNCH, J.
{¶1} Defendant-appellant, Sebastian Facemire, appeals the denial of his motion
to vacate his guilty plea, his conviction and sentence for Violating a Protection Order, and
the imposition of sentence following a probation violation for Strangulation in the Portage
County Court of Common Pleas. Since the advisement by the trial court regarding post-
release control was improper, this matter must be remanded for a limited hearing advising
Facemire of the proper post-release control period. For the following reasons, we affirm
the judgment of the lower court in part, reverse in part, and remand for further proceedings
consistent with this opinion. {¶2} In Case No. 2024 CR 00275, Facemire was indicted on April 4, 2024, by
the Portage County Grand Jury for Aggravated Burglary, a felony of the first degree, in
violation of R.C. 2911.11; and Violating a Protection Order or Consent Agreement, a
felony of the third degree, in violation of R.C. 2919.27.
{¶3} On June 12, 2024, a change of plea hearing was held and a written plea of
guilty was signed. At the hearing, the State indicated that Facemire would enter a guilty
plea to Violating a Protection Order and it would move to dismiss the other charge.
Facemire’s counsel indicated he had reviewed the matter with his client. The court
advised Facemire of the offense to which he would plead and the range of prison terms
for the offense. It informed him of rights he would waive by pleading guilty and indicated
the following regarding his trial rights: “you could take the stand at your trial if you chose
to do so. You have a constitutional right not to testify, but if you wanted to, you could.”
Facemire indicated he understood these rights. He entered a plea of guilty to Violating a
Protection Order. The court accepted the plea, found Facemire guilty, and referred the
matter to the probation department to conduct a presentence investigation.
{¶4} On June 21, 2024, Facemire filed a Motion to Vacate Plea, requesting to
withdraw his guilty plea. A hearing was held on the motion on September 11, 2024. The
court inquired on the basis for withdrawal, and Facemire stated: “The reason that I wanted
to withdraw the plea was because I . . . believed that it was a Felony of the Third Degree
due to previous convictions; however, on my release, when I read the ORC code it said
that it was supposed to be a Felony of the Fifth Degree with a previous conviction.” The
court responded: “Well, that’s not accurate. It’s a Felony of the Third Degree. They kept
it, I’m assuming, at a Felony Three because they dismissed the Felony One that you could
PAGE 2 OF 15
Case Nos. 2024-P-0068, 2024-P-0069 have looked at anywhere from 3 to 11 years in prison, as a minimum, up to 16-and-a-half
years. So the negotiation was that you would plead to the F3, and they would dismiss
the F1 to limit your exposure only to 36 months versus up to 16-and-a-half years.” In the
court’s Judgment Entry denying the motion, it found Facemire was represented by highly
qualified counsel, indicated he understood the potential penalties and constitutional rights
at his plea hearing, he knowingly and intelligently pled guilty, and he failed to provide a
reasonable basis for withdrawal of his plea.
{¶5} A sentencing hearing was held on September 23, 2024. The prosecutor
indicated that it appeared from the PSI that Facemire still believed the offense should be
a felony of the fifth degree. Facemire’s counsel stated: “I know the court explained to him
. . . why that was an inaccurate assessment of the law . . . I think he understands now
what happened. And if I remember correctly, in the presentence investigation he did take
responsibility for his part. His confusion is simply with the level of the charge, which we
have gone over ad nauseam at this point. I believe he understands. Would that be
accurate, Mr. Facemire?” Facemire responded in the affirmative. Defense counsel
requested that he be given community control.
{¶6} The court sentenced Facemire to a term of 18 months in prison. During the
hearing, it advised him: “[u]pon your release from prison, the Adult Parole Authority will
supervise you for two years. During that time, if you violate their rules, they can send you
back to prison for up to half your original sentence, and if you commit a new felony, that
time can be run consecutively with whatever you have left on your post release control
time up to one year.” The sentencing entry stated that the court notified Facemire he “will
be supervised under (mandatory) post-release control R.C. 2967.28 for two years and
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Case Nos. 2024-P-0068, 2024-P-0069 that if the Defendant violates the terms of the post-release control, the Defendant could
receive an additional prison term not to exceed 50 percent of his original prison term.”
{¶7} In Case No. 2023 CR 01369, Facemire entered a plea of guilty to
Strangulation, a felony of the fifth degree, in violation of R.C. 2903.18 on February 15,
2024. He was ordered to serve a term of community control and subsequently ordered
to complete NEOCAP following a motion to revoke sanctions. The Adult Probation
Department filed a second motion to revoke for his failure to enter and complete
NEOCAP. On October 16, 2024, the court issued a Judgment Entry finding he violated
the terms of community control and sentencing him to a six-month prison term.
{¶8} Facemire appeals in both cases and raises the following assignments of
error:
{¶9} “[1.] The trial court erred when it denied appellant’s motion to withdraw his
plea, in violation of Rule 32.1 of the Ohio Rules of Criminal Procedure; the Fifth, Sixth,
and Fourteenth Amendments to the United States Constitution; and Article One, Sections
Five and Ten of the Ohio Constitution.”
{¶10} “[2.] Appellant’s plea is void as the trial court failed to properly advise
appellant of his right to remain silent at trial, in violation of Criminal Rule 11(C)(2)(c) and
the Fifth Amendment to the United States Constitution.”
{¶11} “[3.] The trial court erred when it imposed a mandatory term of post-release
control, in violation of Section 2967.28 of the Ohio Revised Code.”
{¶12} We initially observe that while this is a consolidated appeal from two
separate lower court cases, no errors are assigned in relation to Case No. 2023 CR
01369. As such, that appeal lacks merit.
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Case Nos. 2024-P-0068, 2024-P-0069 {¶13} In his first assignment of error, Facemire argues that the trial court should
have granted his motion to withdraw his plea of guilty to Violating a Protection Order
because he did not understand why the offense was a third-degree felony rather than a
fifth-degree felony.
{¶14} The Ohio Supreme Court has held that “‘[a] presentence motion to withdraw
a guilty plea should be freely and liberally granted.’” State v. Barnes, 2022-Ohio-4486, ¶
13, citing State v. Xie, 62 Ohio St.3d 521, 527 (1992). “A defendant does not, however,
have an ‘absolute right’ to withdraw his or her plea, even when a motion to withdraw is
made before sentencing.” Barnes at ¶ 13, citing Xie at paragraph one of the syllabus.
“Before ruling on a defendant’s presentence motion to withdraw his plea, the trial court
must conduct a hearing to determine whether there is a reasonable and legitimate basis
for withdrawing the plea.” Id.
{¶15} “The decision to grant or deny a presentence motion to withdraw a guilty
plea is within the sound discretion of the trial court.” Xie at paragraph two of the syllabus;
Barnes at ¶ 13 (“[a]bsent an abuse of discretion on the part of the trial court in making its
ruling, its decision must be affirmed”). An abuse of discretion is the court’s “‘failure to
exercise sound, reasonable, and legal decision-making.’” State v. Beechler, 2010-Ohio-
1900, ¶ 62 (2d Dist.), quoting Black’s Law Dictionary (8th Ed. 2004). “[U]nless it is shown
that the trial court acted unjustly or unfairly” in denying the motion to withdraw, “there is
no abuse of discretion.” (Citations omitted.) Xie at 526.
{¶16} “In reviewing the trial court’s ruling on a presentence motion to withdraw a
guilty plea, this court has ‘demonstrated a preference for the Peterseim factors when
these are the factors adopted by the trial court.’” State v. Lockwood, 2024-Ohio-5370, ¶
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Case Nos. 2024-P-0068, 2024-P-0069 14 (11th Dist.), citing State v. Campbell, 2023-Ohio-1626, ¶ 12; State v. Jackson, 2024-
Ohio-2599, ¶ 29 (11th Dist.) (this court “has routinely applied the Peterseim factors . . . to
determine whether or not a court abuses its discretion in denying a presentence motion
to withdraw a guilty plea”). Applying the factors in State v. Peterseim, 68 Ohio App.2d
211 (8th Dist. 1980), this court has held that a “trial court does not abuse its discretion
when denying a presentence motion to withdraw a guilty plea: ‘(1) where the accused is
represented by highly competent counsel, (2) where the accused was afforded a full
hearing, pursuant to Crim.R. 11, before he entered the plea, (3) when, after the motion to
withdraw is filed, the accused is given a complete and impartial hearing on the motion,
and (4) where the record reveals that the court gave full and fair consideration to the plea
withdrawal request.’” (Citations omitted.) Campbell at ¶ 12.
{¶17} This court has observed, however, that Peterseim “does not provide the
exclusive test whereby appellate courts evaluate presentence motions to withdraw guilty
pleas” and “[s]ome appellate courts in this state have applied a nine-factor test described
in State v. Griffin, 141 Ohio App.3d 551, 554 (7th Dist. 2001).” (Citation omitted.)
Lockwood at ¶ 15. These factors include “(1) whether the state will be prejudiced by
withdrawal; (2) the representation afforded to the defendant by counsel; (3) the extent of
the Crim.R. 11 plea hearing; (4) the extent of the hearing on the motion to withdraw; (5)
whether the trial court gave full and fair consideration to the motion; (6) whether the timing
of the motion was reasonable; (7) the reasons for the motion; (8) whether the defendant
understood the nature of the charges and potential sentences; and (9) whether the
accused was perhaps not guilty or had a complete defense to the charge.” Griffin at 554.
Similar factors have also been applied in State v. Grabe, 2020-Ohio-4435 (7th Dist.), cited
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Case Nos. 2024-P-0068, 2024-P-0069 by the trial court. Id. at ¶ 15. Since the trial court considered both the Peterseim factors
and the factors in Griffin/Grabe, we will do the same.
{¶18} In the present matter, many of the foregoing factors were satisfied in favor
of denial. It appears Facemire was represented by highly competent counsel. A properly
licensed attorney has been presumed to be competent. State v. Prinkey, 2011-Ohio-
2583, ¶ 30 (11th Dist.). Defense counsel indicated that he reviewed the matter with
Facemire, Facemire confirmed this, and Facemire stated he was satisfied with counsel.
{¶19} Facemire was provided a full Crim.R. 11 hearing. The trial court conducted
a thorough colloquy when accepting the plea, determining that Facemire understood each
right that he waived. The trial court explained the offense and the maximum sentence he
could receive. Facemire indicated that he understood the charge to which he was
pleading and the potential sentence. Such circumstances indicate that the plea hearing
was compliant with the requirements of Crim.R. 11. See State v. Parham, 2012-Ohio-
2833, ¶ 21 (finding the second Peterseim factor to be met in similar circumstances).
{¶20} A hearing was held at which Facemire was permitted to present the reason
he sought to withdraw his plea. He did not assert a defense to the crime or proclaim his
innocence. Additionally, the record indicates that the trial court, after hearing Facemire’s
justification for seeking withdrawal of his plea, gave it full and fair consideration and
discussed on the record its reasons for denying the motion as well as repeating these
justifications in its sentencing entry.
{¶21} Further, we do not find merit in Facemire’s reason for seeking to withdraw
his plea. Facemire’s argument regarding the basis for withdrawal of his plea relates to
the level of felony to which he pled and was convicted. R.C. 2919.27(B)(3) provides
PAGE 7 OF 15
Case Nos. 2024-P-0068, 2024-P-0069 Violating a Protection Order is a fifth-degree felony if the offender has previously been
convicted of Violating a Protection Order. Pursuant to R.C. 2919.27(B)(4): “If the offender
violates a protection order or consent agreement while committing a felony offense,
violating a protection order is a felony of the third degree.” Here, it is apparent that the
Violating a Protection Order charge was a third-degree felony under section (B)(4), since
it was charged with the felony offense of Aggravated Burglary. The facts of the offenses
as stated in the presentence investigation report indicate that the two offenses occurred
during the same event of entering a protected person’s home by using force.
{¶22} Facemire argues that he should have been permitted to withdraw his plea
because his “decision to plea[d]” was based on an understanding that “the facts for which
he pled guilty to constituted a fifth degree felony.” This is not entirely accurate based on
the record. His argument at the hearing to withdraw his plea was: “on my release, when
I read the ORC code it said that it was supposed to be a Felony of the Fifth Degree with
a previous conviction.” He did not argue that he had believed he was pleading guilty to a
fifth-degree felony rather than a third-degree felony but, instead, that he at some point
realized (wrongly), that the offense to which he pled should have been a fifth-degree
felony. The fact that he knowingly pled guilty to a third-degree felony is buttressed by the
trial court’s advisements at the plea hearing: “you’re gonna plead guilty to count two,
violating a protection order, a felony of the third degree”; “[a] felony three carries with it
up to thirty-six months in prison”; “[d]id your attorney go over the written plea of guilty with
you indicating a plea to count two, violating a protection order, a felony of the third
degree?” At the time of his plea, Facemire indicated he understood the level of the
offense and the potential penalties faced for the level of the offense. Moreover, since he
PAGE 8 OF 15
Case Nos. 2024-P-0068, 2024-P-0069 was charged with Aggravated Burglary committed on the same day as Violating a
Protection Order, this provides a basis for the third-degree felony conviction. His
subsequent belief that he should have been charged with or convicted of a fifth-degree
felony is inaccurate.
{¶23} Facemire argues that his plea was not entered knowingly because of this
misunderstanding. As noted above, at the time he entered the plea, he was clearly
advised, and appears to have believed, that he was being convicted of a third-degree
felony. “Generally, a guilty plea is deemed to have been entered knowingly and
voluntarily if the record demonstrates that the trial court advised a defendant of (1) the
nature of the charge and the maximum penalty involved, (2) the effect of entering a plea
to the charge, and (3) that the defendant will be waiving certain constitutional rights by
entering his plea.” State v. Madeline, 2002 WL 445036, *4 (11th Dist. Mar. 22, 2002).
Facemire was correctly advised of the nature and level of the charge and the maximum
penalties, as well as the effect of entering a plea and the waiver of constitutional rights
and indicated his understanding of these rights. His personal misunderstanding of the
basis for the level of offense, apparently developed after his plea, does not render the
plea involuntary. See State v. Hill, 2024-Ohio-2402, ¶ 32 (3d Dist.) (the defendant’s
“personal misunderstanding” of the law did not render his plea involuntary when he was
advised of his rights and the record demonstrated that he understood the implications of
his plea and the rights being waived).
{¶24} Further, the entry of the plea to Violating a Protection Order also provided
a significant benefit, as it resulted in the State dismissing the first-degree felony offense
of Aggravated Burglary, which carries a potential indefinite sentence of up to 11 to 15-
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Case Nos. 2024-P-0068, 2024-P-0069 and-one-half years in prison. This court has considered the decision to enter a plea to
avoid a more serious prison term as a relevant consideration in evaluating the
voluntariness of a plea. State v. Strong, 2013-Ohio-5189, ¶ 19 (11th Dist.) (“there are
many reasons a criminal defendant may choose to enter a guilty plea, including the
certainty of a plea bargain and/or the expectation of a favorable sentence”). We decline
to address Facemire’s arguments about the negative points of plea bargaining. The
relevant law was complied with by the trial court and Facemire entered his plea knowing
the level of offense to which he pled.
{¶25} We recognize that Facemire’s motion to withdraw his plea was filed in a
timely manner and withdrawal of the plea would likely cause limited prejudice to the State.
However, in weighing all of the factors, we do not find an abuse of discretion in the denial
of the motion for the reasons outlined above.
{¶26} The first assignment of error is without merit.
{¶27} In his second assignment of error, Facemire argues that he was never
advised that his silence could not be used against him at trial and no one could comment
on his silence at trial. He argues that the failure to provide such an advisement prevented
him from entering a knowing and intelligent guilty plea.
{¶28} As noted above, “[w]hen a defendant enters a plea in a criminal case, the
plea must be made knowingly, intelligently, and voluntarily. Failure on any of those points
renders enforcement of the plea unconstitutional.” State v. Engle, 74 Ohio St.3d 525, 527
(1996). “The best way to ensure that pleas are entered knowingly and voluntarily is to
simply follow the requirements of Crim.R. 11 when deciding whether to accept a plea
agreement.” State v. Clark, 2008-Ohio-3748, ¶ 29. “This court reviews de novo whether
PAGE 10 OF 15
Case Nos. 2024-P-0068, 2024-P-0069 the trial court accepted a plea in compliance with Crim. R. 11.” State v Willard, 2021-
Ohio-2552, ¶ 51 (11th Dist.).
{¶29} “Ohio’s Crim.R. 11 outlines the procedures that trial courts are to follow
when accepting pleas” to “‘ensur[e] an adequate record on review by requiring the trial
court to personally inform the defendant of his rights and the consequences of his plea
and determine if the plea is understandingly and voluntarily made.’” (Citation omitted.)
State v. Dangler, 2020-Ohio-2765, ¶ 11; State v. Nero, 56 Ohio St.3d 106, 107 (1990).
Relevant to the present appeal is Crim.R. 11(C)(2)(c), which provides that the court in a
felony case shall not accept a plea of guilty: “without first addressing the defendant
personally” and “[i]nforming the defendant and determining that the defendant
understands that by the plea the defendant is waiving the rights to jury trial, to confront
witnesses against him or her, to have compulsory process for obtaining witnesses in the
defendant’s favor, and to require the state to prove the defendant’s guilt beyond a
reasonable doubt at a trial at which the defendant cannot be compelled to testify against
himself or herself.”
{¶30} “On appellate review the questions to be answered are ‘(1) has the trial
court complied with the relevant provision of the rule? (2) if the court has not complied
fully with the rule, is the purported failure of a type that excuses a defendant from the
burden of demonstrating prejudice? and (3) if a showing of prejudice is required, has the
defendant met that burden?’” State v. Servantes, 2023-Ohio-2116, ¶ 35 (11th Dist.), citing
Dangler at ¶ 17.
{¶31} There is no question that the trial court advised Facemire he had “a
constitutional right not to testify” and he indicated his understanding that the right would
PAGE 11 OF 15
Case Nos. 2024-P-0068, 2024-P-0069 be waived. Facemire contends that he should have been advised, however, that, if he
did not testify, his silence could not be used against him. He recognizes this argument
has been rejected by this court but requests a ruling contrary to that precedent.
{¶32} In State v. Hayes, 2016-Ohio-2794 (11th Dist.), the defendant argued that
he was not properly advised of the consequences of his plea where, although he was
informed that “you’re not required to testify against yourself,” he was not told his right to
remain silent “could not be used against him.” Id. at ¶ 9, 13. This court concluded that
the trial court’s advisement that he “could not be required to testify against himself . . .
clearly imports that he had an absolute right to remain silent.” Id. at ¶ 19. Similarly, in
State v. Murray, 2023-Ohio-3762 (11th Dist.), the defendant argued her plea was not
knowing and intelligent where the trial court had advised her “[y]ou have a constitutional
right not to testify, but if you wanted to you could” but did not mention her silence could
not be used against her. Id. at ¶ 39. This court concluded that language complied with
Crim.R. 11(C)(2)(c), citing to Hayes for the proposition that “the trial court’s advisement
that the appellant could not be required to testify clearly imported that he had the absolute
right to remain silent.” Id. at ¶ 40. In the present matter, the court used language identical
to that in Murray, which indicated to Facemire the right not to testify. He further indicated
that he understood this right. We find no reason to depart from this court’s precedent.
The trial court did not fail to comply with the requirement of Crim.R. 11 to advise Facemire
of the right not to testify and, thereby, we reject the argument that his plea was not
knowingly, intelligently, or voluntarily entered on this ground.
{¶33} The second assignment of error is without merit.
{¶34} In his third assignment of error, Facemire argues that, in Case No. 2024 CR
PAGE 12 OF 15
Case Nos. 2024-P-0068, 2024-P-0069 00275, he was advised at the plea hearing that he could be given up to two years of post-
release control but was then sentenced to a mandatory two-year term of post-release
control. The State concedes that there was error by the trial court in this regard and the
matter should be remanded.
{¶35} At the plea hearing, Facemire was advised that the “Adult Parole Authority
could choose to supervise you for up to two years.” At the sentencing hearing, the court
stated “[u]pon your release from prison, the Adult Parole Authority will supervise you for
two years.” The sentencing entry stated that Facemire “will be supervised under
(mandatory) post-release control R.C. 2967.28 for two years.”
{¶36} Pursuant to R.C. 2967.28(C), “[a]ny sentence to a prison term for a felony
of the third, fourth, or fifth degree that is not subject to division (B)(1) or (4) of this section
shall include a requirement that the offender be subject to a period of post-release control
of up to two years after the offender’s release from imprisonment, if the parole board . . .
determines that a period of post-release control is necessary for that offender.” The
sentence in the present matter was for a third-degree felony that is not subject to division
(B)(1) or (4), which relate to felony sex offenses and offenses of violence. Thus, he was
to be subject to a term of up to two years if the APA decided post-release control was
necessary. The imposition of post-release control was not mandatory.
{¶37} “[W]ith R.C. 2929.191, the General Assembly has . . . provided a statutory
remedy to correct a failure to properly impose post release control.” State v. Singleton,
2009-Ohio-6434, ¶ 23. When “an appellant does not receive statutorily compliant
notification at the sentencing hearing, the remedy is to provide him with a R.C.
2929.191(C) hearing.” State v. Freetage, 2021-Ohio-4050, ¶ 40 (11th Dist.). Pursuant
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Case Nos. 2024-P-0068, 2024-P-0069 to R.C. 2191.191, “the sentencing is not void but is subject to a hearing with the limited
purpose of providing the Appellant with notice of mandatory post-release control.” Id. at
¶ 41. This is the proper remedy where the trial court overstates the applicable term of
post-release control. State v. Fleischer, 2017-Ohio-7762, ¶ 29 (7th Dist.) (a limited
remand was proper when the court “overstated the applicable term of post-release
control”); State v. Bricker, 2022-Ohio-3494, ¶ 20 (6th Dist.).
{¶38} Since Facemire was not given statutorily compliant notification regarding
post-release control at sentencing or in the sentencing entry, the proper remedy is to
remand to the court of common pleas for a hearing to provide Facemire with accurate
notice of post-release control pursuant to R.C. 2929.191(C).
{¶39} The third assignment of error is with merit.
{¶40} For the foregoing reasons, Facemire’s convictions and sentences in the
Portage County Court of Common Pleas are affirmed in part, reversed in part, and this
matter is remanded for a limited hearing compliant with R.C. 2929.191. Costs to be taxed
against the parties equally.
MATT LYNCH, J.,
JOHN J. EKLUND, J.,
concur.
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Case Nos. 2024-P-0068, 2024-P-0069 JUDGMENT ENTRY
For the reasons stated in the Opinion of this court, the judgments of the Portage
County Court of Common Pleas are affirmed in part, reversed in part, and remanded for
a limited hearing compliant with R.C. 2929.191.
Costs to be taxed against the parties equally.
JUDGE SCOTT LYNCH
JUDGE MATT LYNCH, concurs
JUDGE JOHN J. EKLUND, concurs
THIS DOCUMENT CONSTITUTES A FINAL JUDGMENT ENTRY
A certified copy of this opinion and judgment entry shall constitute the mandate pursuant to Rule 27 of the Ohio Rules of Appellate Procedure.
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Case Nos. 2024-P-0068, 2024-P-0069