People v. Cathey

ILLINOIS OFFICIAL REPORTS
Supreme Court

People v. Cathey, 2012 IL 111746

Caption in Supreme THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ELRON
Court: CATHEY, Appellant.

Docket No. 111746
Filed March 22, 2012

Held Where, after a failed self-defense claim as to which defendant testified,
(Note: This syllabus appellate counsel challenged the use of convictions to impeach but not
constitutes no part of the lack of a pretrial ruling thereon, a postconviction petition alleging his
the opinion of the court ineffectiveness arguably raised claims of deficiency and prejudice and
but has been prepared should not have been summarily dismissed—aggravated battery with a
by the Reporter of firearm.
Decisions for the
convenience of the
reader.)

Decision Under Appeal from the Appellate Court for the First District; heard in that court
Review on appeal from the Circuit Court of Cook County, the Hon. John A.
Wasilewski, Judge, presiding.

Judgment Appellate court judgment reversed.
Circuit court judgment reversed.
Cause remanded.
Counsel on Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy
Appeal Defender, and David C. Holland, Assistant Appellate Defender, of the
Office of the State Appellate Defender, of Chicago, for appellant.

Lisa Madigan, Attorney General, of Springfield, and Anita Alvarez,
State’s Attorney, of Chicago (Alan J. Spellberg, Annette Collins and
Matthew Connors, Assistant State’s Attorneys, of counsel), for the
People.

Justices JUSTICE BURKE delivered the judgment of the court, with opinion.
Chief Justice Kilbride and Justices Freeman, Thomas, Garman, Karmeier,
and Theis concurred in the judgment and opinion.

OPINION

¶1 The defendant, Elron Cathey, filed a pro se postconviction petition in which he alleged
he received ineffective assistance of counsel on direct appeal. According to the petition,
counsel failed to argue that defendant’s trial judge erred when the judge declined to rule on
defendant’s motion in limine to bar the use of prior convictions for impeachment purposes
before defendant testified. The circuit court of Cook County summarily dismissed the
postconviction petition and the appellate court affirmed. 406 Ill. App. 3d 503. For the reasons
set forth below, we reverse the judgments of the appellate and circuit courts and remand the
cause to the circuit court for further proceedings.

¶2 BACKGROUND
¶3 Defendant was charged with attempted first degree murder and aggravated battery with
a firearm in connection with the shooting of Maurice Sterling. Prior to trial, defense counsel
filed a motion in limine which sought to prevent the State from using defendant’s prior
convictions for attempted murder and aggravated battery with a firearm for impeachment
purposes. Counsel argued that any probative value of the prior convictions would be
outweighed by their prejudicial effect under the balancing test set forth in People v.
Montgomery, 47 Ill. 2d 510 (1971), because those convictions were identical to the charges
in the present case, and further, because defendant was asserting self-defense, it was essential
to obtain a ruling on the motion before defendant decided whether to testify:
“any probative value [the prior convictions] may have is substantially outweighed by
the prejudice to the defendant in that this is a shooting case and the crime is so
similar. The prejudicial effect really hits home in this case because it determines
whether or not really [defendant] is going to take the stand or not.

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 He is trying to allege a self-defense which becomes almost impossible if he
doesn’t take the stand in his own behalf, but my advice is if the Jury is informed
about a prior aggravated battery with a firearm conviction and the attempted murder
conviction revolving around a firearm that their ears would be closed to [defendant’s]
self-defense testimony and only open their eyes to the prior conviction and that I
think that that’s why we are considering this ruling of such a magnitude that if the
Court allows them to get into that conviction then he has to not get on the witness
stand and I don’t think that’s fair.”
The trial judge declined to rule on defense counsel’s motion before trial, stating:
“[P]art of the balancing test is if other witnesses are going to have convictions and
their credibility is going to be judged on the basis of prior convictions, why shouldn’t
it be done for the defendant?
***
So I will give you some indication depending on how much impeachment is used
on other witnesses and if it is used, if they have similar convictions or of a similar
nature, then I think the effect is lessened. I can’t make a decision right now, but at
this point in time I am going to deny it; but I’m going to revisit the matter after I have
heard all the evidence.”
Thereafter, the matter proceeded to a jury trial, which was held in February 2006.
¶4 Brian Finley testified on behalf of the prosecution. Finley stated that on June 8, 2004, at
approximately 10 p.m., he was at a friend’s house watching a basketball game when his
brother, Xavier, called. Xavier, who had been sitting on a porch with some friends and had
seen defendant approach with a group of teenagers, said that defendant was trying to kill him
and that Finley should come and get him. After receiving Xavier’s call, Finley went to his
house, took his mother’s car, and picked up Maurice Sterling.
¶5 After picking up Sterling, Finley spotted defendant, whom he knew from the
neighborhood, with a group of about four teenagers. Finley got out of the car and asked
defendant where his brother was. Finley testified that he saw the other teenagers who were
with defendant moving around and saw one of the teenagers hand something to defendant
which was black and “real big.” Sterling then yelled, “He got a gun.” Finley and Sterling
turned and ran back toward the car. Finley testified that, as Sterling was getting into the car
through the passenger side door, there was a loud “pow” and Sterling jerked and fell into the
car. Finley then grabbed Sterling, pulled him completely into the car, and drove off. In his
testimony, Finley acknowledged that he pled guilty to a felony gun charge in 1998 and that
he was currently facing contempt charges.
¶6 Maurice Sterling testified that he was shot in the head but that he did not remember
anything about the incident.
¶7 James Johnson testified on behalf of defendant. Johnson was sitting on a porch when he
saw a car pull up and someone get out. Johnson stated there was an argument and then
“somebody got to tussling. They was like, kind of like arm wrestling or whatever, and the
gun went off.” Johnson immediately ran inside. Johnson testified that the argument only
lasted for 7 to 10 seconds before the “tussling” started and that he never observed a gun, but

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 only heard a shot.
¶8 Defendant testified on his own behalf. Defendant stated that on June 8, 2004, at
approximately 10:30 p.m., he was walking home when he saw a black car approach and two
people jump out. Defendant later learned the two people were Brian Finley and Maurice
Sterling. Defendant testified that Finley was talking “crazy,” saying that someone was trying
to do something to his brother. Defendant did not know Finley or his brother at that time and
responded, “Man, what the fuck.” Finley then pulled a revolver from the small of his back
and said, “Don’t run.”
¶9 Defendant testified that he wrestled with Finley for the gun. Defendant got behind Finley
and put his left hand on top of Finley’s hand which was holding the gun. The two of them
spun around about 180 degrees, at which point the gun went off. Defendant did not see a
bullet strike anyone. Defendant stated that he then pushed Finley and ran home. Defendant’s
attorney did not elicit from defendant whether he had any prior convictions.
¶ 10 After defendant testified, the State sought to admit his prior conviction for possession of
a controlled substance from 2002, and convictions for attempted first degree murder and
aggravated battery with a firearm from 1992, arguing they were relevant and admissible to
impeach defendant because defendant had an interest in fabricating his story. Defense
counsel objected to the admission of the prior convictions, stating:
“Judge, [ ] we hashed this out beforehand, and I—I felt like everything was
absolutely clear. *** [B]asically what the implication of what the Court’s prior ruling
was, deferred ruling, which is that, [ ] at that point in time I fully intended on going
at Brian Finley at possession of weapon and his propensities ***.
We made a—a strategic decision, at that point, Judge, whether it was to our
benefit to leave Brian Finley alone on his prior gun possession case and any possible
implications, because getting in that—one or two questions on that was seriously
outweighed by then the Court saying that, okay, well you went into it with him, now
they can go into his [defendant’s]—go deeper into his background. I didn’t ask one
question of Brian Finley about a gun case. *** We specifically stayed away from it.
Didn’t imply it. Didn’t go anywhere near it.”
¶ 11 Defense counsel offered to allow the State to impeach defendant with his prior conviction
for possession of a controlled substance, but argued that the other convictions were more
prejudicial than probative. The court allowed the State to introduce defendant’s prior
convictions for possession of a controlled substance and aggravated battery with a firearm
but ruled that the State could not introduce his attempted first degree murder conviction. In
rebuttal closing argument, the State argued, “And what is defendant’s interest or bias in
trying to fabricate a story for you to believe? He was previously convicted of possession of
a controlled substance, and, also, aggravated battery with a firearm. He has the most interest
to concoct the story for you.”
¶ 12 The jury acquitted defendant of attempted first degree murder but found him guilty of
aggravated battery with a firearm. The circuit court sentenced defendant to 40 years’
imprisonment.
¶ 13 On direct appeal, defendant was represented by the same attorney who represented him

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 at trial. Defendant’s attorney argued that the State failed to prove defendant guilty beyond
a reasonable doubt; that the trial court improperly admitted one of defendant’s prior
convictions because it was more prejudicial than probative under Montgomery; and
defendant’s sentence was excessive. The appellate court affirmed both defendant’s
conviction and sentence in an unpublished order on March 23, 2007. People v. Cathey, No.
1-06-0460 (2007) (unpublished order under Supreme Court Rule 23). This court denied leave
to appeal.
¶ 14 On September 30, 2008, defendant filed the instant pro se postconviction petition.
Defendant’s pro se petition alleged, inter alia, that he was denied effective assistance of
counsel because counsel failed to argue on appeal that defendant’s trial judge erred when he
delayed ruling on defendant’s motion in limine. Defendant also averred that counsel told him
that if the State’s primary witness, Brian Finley, was not impeached with his prior
conviction, then the judge would not allow the State to impeach defendant with his
convictions. Further, according to defendant, he relied on counsel’s erroneous advice in
deciding to testify. Defendant also alleged that he was denied effective assistance of counsel
because counsel failed to request a reckless conduct jury instruction.
¶ 15 The circuit court summarily dismissed defendant’s petition. The appellate court affirmed,
addressing and rejecting both of defendant’s claims of ineffective assistance of counsel. 406
Ill. App. 3d 503. We granted defendant’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff.
Feb. 26, 2010).

¶ 16 ANALYSIS
¶ 17 The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2006)) “provides a
procedural mechanism in which a convicted criminal can assert ‘that in the proceedings
which resulted in his or her conviction there was a substantial denial of his or her rights
under the Constitution of the United States or of the State of Illinois or both.’ ” People v.
Harris, 224 Ill. 2d 115, 124 (2007) (quoting 725 ILCS 5/122-1(a) (West 2002)). A circuit
court may summarily dismiss a postconviction petition if it determines that the petition is
“frivolous or is patently without merit.” 725 ILCS 5/122-2.1(a)(2) (West 2006). A
postconviction petition is considered frivolous or patently without merit only if it has no
“arguable basis either in law or in fact.” People v. Hodges, 234 Ill. 2d 1, 16 (2009). We
review the trial court’s order summarily dismissing a pro se postconviction petition de novo.
People v. Coleman, 183 Ill. 2d 366, 388-89 (1998).

¶ 18 I. “Patrick Violation”
¶ 19 The appellate court began its analysis of defendant’s appeal by stating the following:
“In this appeal, defendant first contends that the circuit court erred in dismissing
his pro se petition as frivolous and patently without merit because he set forth the gist
of a claim that the trial court violated his constitutional rights as set forth in People
v. Patrick, 233 Ill. 2d 62 (2009), when it delayed ruling on his motion in limine to
exclude evidence of his prior convictions, made pursuant to People v. Montgomery,
47 Ill. 2d 510 (1971), until after he had testified. *** In Patrick, 233 Ill. 2d at 69-73,

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 our supreme court held that a trial court’s failure to rule on a motion in limine on the
admissibility of prior convictions when it has sufficient information to do so
constitutes an abuse of discretion and infringes on a defendant’s right to testify in his
own behalf.” 406 Ill. App. 3d at 505-06.
The appellate court then went on to reject this claim, holding, inter alia, that Patrick does
not apply retroactively to cases on collateral review. 406 Ill. App. 3d at 508-10.
¶ 20 Although the majority of the appellate court’s opinion addressed whether defendant had
properly raised a “Patrick violation,” we have been unable to find any citation to Patrick in
defendant’s postconviction petition or any contention by defendant that a Patrick violation
or Patrick-type violation may be raised for the first time on collateral review. As noted,
defendant does allege that counsel was ineffective on direct appeal for not arguing that the
trial judge erred when he delayed ruling on defendant’s motion in limine. However, the
Patrick claim addressed by the appellate court is not contained in defendant’s petition.
¶ 21 As this court has stated, “ ‘[t]he question raised in an appeal from an order dismissing
a post-conviction petition is whether the allegations in the petition, liberally construed and
taken as true, are sufficient to invoke relief under the Act.’ (Emphasis added.) Thus, any
issues to be reviewed must be presented in the petition filed in the circuit court.” People v.
Jones, 211 Ill. 2d 140, 148 (2004) (quoting People v. Coleman, 183 Ill. 2d 366, 388 (1998));
see also, e.g., People v. Petrenko, 237 Ill. 2d 490, 502 (2010). The appellate court below
erroneously reached an issue that was not raised in defendant’s postconviction petition.
Accordingly, we vacate that portion of the appellate court’s opinion which addressed the
Patrick violation and held that Patrick does not apply retroactively to cases on collateral
review.

¶ 22 II. Ineffective Assistance of Counsel, Motion in Limine
¶ 23 Defendant’s pro se petition alleged that counsel provided ineffective assistance on direct
appeal because he failed to argue that the trial judge erred when he delayed ruling on
defendant’s motion in limine. Claims of ineffective assistance are governed by the standard
set forth in Strickland v. Washington, 466 U.S. 668 (1984). See People v. Albanese, 104 Ill.
2d 504 (1984) (adopting Strickland). To prevail on a claim of ineffective assistance of
counsel, a defendant must demonstrate that counsel’s performance was deficient and that the
deficient performance prejudiced the defendant. Strickland, 466 U.S. at 687. More
specifically, a defendant must show that counsel’s performance was objectively unreasonable
under prevailing professional norms and that there is 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. At the first stage of proceedings under the Act, a petition
alleging ineffective assistance of counsel may not be summarily dismissed if (i) it is arguable
that counsel’s performance fell below an objective standard of reasonableness and (ii) it is
arguable that the defendant was prejudiced. Hodges, 234 Ill. 2d at 17.

¶ 24 A. Deficient Performance
¶ 25 The appellate court concluded that counsel’s performance could not have been

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 unreasonable as a matter of law because Patrick was not decided until after defendant’s
direct appeal was complete. The appellate court explained: “Patrick, which announced a new
constitutional rule of criminal procedure, was not decided until after the completion of
defendant’s trial and direct appeal, and we therefore conclude that counsel was not
ineffective for failing to challenge the trial court’s delay in ruling on his motion in
defendant’s posttrial motion for a new trial or on direct appeal.” 406 Ill. App. 3d at 511.
¶ 26 The appellate court’s analysis is misplaced. The inquiry is not simply when Patrick was
decided. Rather, the relevant focus under Strickland is on the state of the law at the time of
defendant’s trial and appeal and whether a reasonable attorney should have challenged the
trial court’s delayed Montgomery ruling. For the following reasons, we hold that it is at least
arguable that prevailing norms required a reasonable attorney to argue that the trial judge
erred when he delayed ruling on defendant’s motion in limine.
¶ 27 First, at the hearing on defendant’s motion in limine, defense counsel argued that the
timing of the trial court’s decision was important because it affected whether defendant
would testify. Counsel argued that it would be impossible for defendant to put forth his
defense if he could not take the stand but, if his prior convictions were used to impeach him,
counsel would recommend that defendant not take the stand. Counsel further emphasized
that the judge’s decision on the motion in limine was of “such magnitude” that it affected the
fairness of defendant’s trial. Thereafter, when the State sought to introduce defendant’s prior
convictions, defense counsel pointed out he believed the trial court’s earlier ruling was that,
if he did not impeach Finley with his prior convictions, the trial court would not allow the
State to impeach defendant with his. Counsel argued that, if the court were to now allow the
State to do so, defendant would suffer prejudice, which would render his trial unfair. Thus,
defendant’s counsel was clearly cognizant of the importance of the delayed-Montgomery
issue and in obtaining a ruling so that defendant could make a decision regarding whether
to testify. Nothing in the record suggests why, given counsel’s own emphasis on the
importance of the issue, it was not raised on appeal.
¶ 28 Further, during the time of defendant’s trial and appeal, several appellate decisions
addressed the issue of delaying a Montgomery ruling. For example, in People v. Ballard, 346
Ill. App. 3d 532, 544-45 (2004), the appellate court declined to grant the defendant a new
trial because he had not testified, but concluded that “the [trial] court should have ruled and
then defendant could meaningfully consider whether to exercise his right to testify.”
Numerous other cases were also filed in the appellate court raising this issue.1 Authority from

1
People v. McGregory, No. 1-06-1119 (Feb. 6, 2008) (unpublished order under Supreme
Court Rule 23) (opening brief filed July 23, 2007); People v. Tucker, No. 1-06-2619 (May 12, 2008)
(unpublished order under Supreme Court Rule 23) (opening brief filed September 26, 2007), appeal
allowed, 231 Ill. 2d 684 (Mar. 25, 2009) (consolidated with People v. Averett, 237 Ill. 2d 1 (2010));
People v. Averett, 381 Ill. App. 3d 1001 (Mar. 31, 2008) (opening brief filed February 15, 2007),
aff’d, 237 Ill. 2d 1 (2010); People v. Byrd, No. 1-05-1081 (Feb. 22, 2008) (unpublished order under
Supreme Court Rule 23) (opening brief filed May 22, 2006); People v. Williams, No. 1-05-2629
(Feb. 15, 2008) (unpublished order under Supreme Court Rule 23) (opening brief filed December
5, 2006); People v. Cowans, No. 1-06-0947 (Jan. 16, 2008) (unpublished order under Supreme Court

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 other jurisdictions, which was later cited in our decision in Patrick, had also found error in
not ruling on the admissibility of a defendant’s prior conviction until after the defendant
testifies. See, e.g., Settles v. State, 584 So. 2d 1260 (Miss. 1991); State v. McClure, 692 P.2d
579 (Or. 1984); State v. Ritchie, 473 A.2d 1164 (Vt. 1984). Further, the appellate court’s
decision in People v. Phillips, 371 Ill. App. 3d 948 (2007), which held that a trial court
abused its discretion in delaying ruling on a Montgomery issue, was filed on March 6, 2007,
before the appellate court filed its decision in defendant’s direct appeal.
¶ 29 Based on the defense counsel’s awareness of the issue, and the fact that it was a
frequently litigated matter of criminal law during the pendency of defendant’s trial and direct
appeal, we conclude it is at least arguable that counsel’s failure to raise the issue of the
delayed Montgomery ruling on appeal “fell below an objective standard of reasonableness.”
Strickland, 466 U.S. at 687-88. Accordingly, defendant’s claim of ineffective assistance was
not frivolous or patently without merit with respect to the deficient performance prong of
Strickland.

¶ 30 B. Prejudice
¶ 31 Defendant maintains that he was prejudiced by counsel’s failure to raise the delayed-
Montgomery-ruling issue on appeal. Defendant notes that this court announced that the
petitions for leave to appeal had been allowed in Phillips and Patrick several months before
denying defendant’s petition for leave to appeal from his direct appeal. Defendant maintains
that, if the delayed-Montgomery-ruling issue had been raised in his direct appeal, then,
regardless of who succeeded on the issue, either defendant’s petition for leave to appeal or
the State’s petition for leave to appeal would have been granted or held in abeyance pending

Rule 23) (opening brief filed June 5, 2007); People v. Wright, No. 1-05-2892 (Dec. 28, 2007)
(unpublished order under Supreme Court Rule 23) (opening brief filed May 17, 2007); People v.
Love, No. 1-05-3935 (Dec. 4, 2007) (unpublished order under Supreme Court Rule 23) (opening
brief filed July 12, 2007); People v. Holloway, No. 1-05-3439 (Nov. 30, 2007) (unpublished order
under Supreme Court Rule 23) (opening brief filed May 23, 2007), vacated, 231 Ill. 2d 677 (Mar.
25, 2009) (supervisory order; for reconsideration in light of Patrick), aff’d, 398 Ill. App. 3d 317
(2009); People v. Westbrook, No. 1-06-0206 (Sept. 14, 2007) (unpublished order under Supreme
Court Rule 23) (opening brief filed January 24, 2007); People v. DeBerry, 375 Ill. App. 3d 822
(2007) (opening brief filed December 29, 2006); People v. Franklin, No. 1-05-1213 (May 4, 2007)
(unpublished order under Supreme Court Rule 23) (opening brief filed July 26, 2005); People v.
Walker, No. 1-05-0356 (Mar. 22, 2007) (unpublished order under Supreme Court Rule 23) (opening
brief filed July 18, 2006); People v. Harvey, No. 1-05-0943 (Nov. 27, 2006) (unpublished order
under Supreme Court Rule 23) (opening brief filed April 25, 2006); People v. Mitchell, No. 1-04-
3006 (Aug. 11, 2006) (unpublished order under Supreme Court Rule 23) (opening brief filed
September 2, 2005); People v. Smith, No. 1-03-2631 (May 19, 2006) (unpublished order under
Supreme Court Rule 23) (opening brief filed December 22, 2004); People v. Summers, No. 1-04-
2163 (Feb. 10, 2006) (unpublished order under Supreme Court Rule 23) (opening brief filed April
24, 2005); People v. Calixto, No. 1-04-2201 (Jan. 30, 2006) (unpublished order under Supreme Court
Rule 23) (opening brief filed June 21, 2005); People v. Thomas, No. 1-04-0283 (Nov. 10, 2005)
(unpublished order under Supreme Court Rule 23) (opening brief filed November 18, 2004).

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 this court’s decision in Patrick. Further, defendant argues that his case is similar to Patrick
and, thus, he would have benefitted from this court’s ruling in that case. The State, in its
brief, does not respond to this argument. Given the facts as alleged by defendant, we
conclude there is at least an arguable basis that defendant was prejudiced by counsel’s failure
to raise the delayed-Montgomery-ruling issue on appeal. Accordingly, defendant’s
postconviction claim of ineffective assistance was not frivolous or patently without merit
with respect to the prejudice prong of Strickland.
¶ 32 Because defendant’s claim of ineffective assistance of counsel with respect to the
delayed-Montgomery-ruling issue is not frivolous or patently without merit, this matter must
be remanded to the circuit court for further proceedings. In so holding, we note that our
decision only entitles defendant to advance to the second stage of the postconviction
proceedings, where he may be appointed counsel and submit an amended petition. See 725
ILCS 5/122-4, 122-5 (West 2006). We express no opinion on whether defendant will be able
to meet the second-stage standard and proceed to an evidentiary hearing on his amended
petition. See People v. Edwards, 197 Ill. 2d 239, 246-47 (2001) (a decision on whether
petitioner has established a substantial showing of a constitutional violation is inappropriate
at the summary dismissal stage of postconviction proceedings).

¶ 33 III. Ineffective Assistance of Counsel, Jury Instruction
¶ 34 Defendant’s postconviction petition also contained an allegation that counsel was
ineffective for failing to request a reckless conduct jury instruction. We need not address this
issue. Partial summary dismissals are not permitted under the Post-Conviction Hearing Act.
People v. Rivera, 198 Ill. 2d 364 (2001). Because we have concluded that defendant’s
petition sets forth a claim of ineffective assistance of counsel with respect to the delayed
Montgomery ruling which survives summary dismissal, the entire petition must be remanded
for further proceedings, regardless of the merits of any other claims. Further, because the
appellate court erred in holding that defendant’s claim of ineffective assistance regarding the
Montgomery issue was subject to summary dismissal, the appellate court erred in addressing
the ineffective assistance claim regarding the jury instruction—there was no need to reach
that claim. Accordingly, we vacate that portion of the appellate court opinion which held that
defendant’s claim of ineffective assistance of counsel with respect to the jury instruction was
frivolous or patently without merit.

¶ 35 CONCLUSION
¶ 36 For the foregoing reasons, we reverse the judgments of the appellate and circuit courts
and remand this cause to the circuit court for further proceedings consistent with this
decision.

¶ 37 Appellate court judgment reversed.
¶ 38 Circuit court judgment reversed.
¶ 39 Cause remanded.

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