State v. Meadows

[Cite as State v. Meadows, 2019-Ohio-4943.]

COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT

JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. Craig R. Baldwin, J.
Plaintiff-Appellee : Hon. Earle E. Wise, J.
:
-vs- :
: Case No. 2019CA0019
DANIEL MEADOWS : 2019CA0020
:
Defendant-Appellee : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Mansfield
Municipal Court of Common Pleas, Case
Nos. 2018TRC04641 and 19TRC00293

JUDGMENT: Affirmed in part; reversed in part; vacated
in part and remanded

DATE OF JUDGMENT ENTRY: December 2, 2019

APPEARANCES:

For: Plaintiff-Appellee For: Defendant-Appellant
JOSEPH R. REED JOHN C. O’DONNELL
Assistant Law Director 10 West Newlon Place
City of Mansfield Mansfield, OH 44902
30 North Diamond Street
Mansfield, OH 44902
Richland County, Case No. 2019CA0019 and 2019CA0020 2

Gwin, P.J.

{¶1} Defendant-appellant Daniel Meadows [“Meadows”] appeals his conviction

and sentence after a jury trial in the Mansfield Municipal Court, Richland County, Ohio.

Facts and Procedural History

{¶2} On May 13, 2018, Trooper Robert Warner of the Ohio State Patrol initiated

a stop of a vehicle for driving left of center. Meadows was driving the vehicle. As Trooper

Warner approached and spoke with Meadows, the trooper noticed an odor of alcohol

coming from the vehicle. Upon further questioning, Meadows admitted to having drunk

one beer that evening.

{¶3} Trooper Warner requested Meadows perform the Walk and Turn, One Leg

Stand, and Horizontal Gaze Nystagmus tests. Based on Meadows’s performance on

these tests, Trooper Warner determined that Meadows was under the influence and

placed him under arrest for Operating a Vehicle under the Influence. Meadows

subsequently refused to submit to a breath test after Trooper Warner had read him the

BMV 2255 form. Meadows was charged for OVI “under the influence” in violation of R.C.

4511.19(A)(1)(a) in case number 18 TRC 46411.

{¶4} On January 11, 2019, the state filed a second charge in Case Number 19

TRC 2932 under R.C. 4511.19(A) (2), which provides that when Defendant has a prior

conviction in twenty years and it is a refusal, then the minimum sentence is six days. In

that case, it was alleged that Meadows had a prior OVI in 2005.

1 5th Dist. Richland No. 2019 CA 0019.
2 5th Dist. Richland No. 2019 CA 0020.
Richland County, Case No. 2019CA0019 and 2019CA0020 3

{¶5} Meadows filed a Motion to Dismiss in case number 19 TRC 293 on Speedy

Trial grounds. A hearing was held on January 29, 2019 prior to the Trial. The trial court

overruled the Motion to Dismiss.

{¶6} Trial proceeded and a jury found Meadows guilty on both charges. The trial

court sentenced Meadows on both convictions.

Assignments of Error

{¶7} “I. THE TRIAL COURT ERRED IN OVERRULING

DEFENDANT/APPELLANT' S MOTION TO DISMISS PURSUANT TO ORC §2945.71.

{¶8} “II. DEFENDANT/APPELLANT'S CONVICTION FOR A VIOLATION OF

ORC §4511.19(A)(1) WAS TAINTED BY THE INADMISSIBLE EVIDENCE OF A PRIOR

CONVICTION.

{¶9} “III. THE COURT COMMITTED PLAIN ERROR BY IMPOSING SEPARATE

SENTENCES.

{¶10} “IV. TRIAL COUNSEL WAS INEFFECTIVE IN VIOLATION OF THE SIXTH

AMENDMENT FOR FAILURE TO OBJECT TO THE TRIAL COURT'S SENTENCING ON

THE ALLIED OFFENSES OF SIMILAR IMPORT.”

I.

{¶11} In his First Assignment of Error, Meadows contends that the OVI in Case

number 19 TRC 293 is the same OVI charged in Case Number 18 TRC 4641. Meadows

notes that the only difference between the two cases is that in Case Number 19 TRC 293

the state alleged a prior conviction within 20 years. Therefore, Meadows argues the state

was required to bring him to trial within 90-days of his arrest. Because he was not brought
Richland County, Case No. 2019CA0019 and 2019CA0020 4

to trial within that period of time, Meadows contends the trial court erred in overruling his

motion to dismiss Case Number 19 TRC 293.

STANDARD OF APPELLATE REVIEW.

{¶12} Speedy trial provisions are mandatory and are encompassed within the

Sixth Amendment to the United States Constitution. The availability of a speedy trial to a

person accused of a crime is a fundamental right made obligatory on the states through

the Fourteenth Amendment. State v. Ladd, 56 Ohio St.2d 197, 200, 383 N.E.2d 579

(1978). “The statutory speedy trial provisions, R.C. 2945.71 et seq., constitute a rational

effort to enforce the constitutional right to a public speedy trial of an accused charged with

the commission of a felony or a misdemeanor and shall be strictly enforced by the courts

of this state.” State v. Pachay, 64 Ohio St.2d 218, 416 N.E.2d 589 (1980), syllabus.

{¶13} Our review of a trial court’s decision regarding a motion to dismiss based

upon a violation of the speedy trial provisions involves a mixed question of law and fact.

State v. Larkin, 5th Dist. No.2004–CA–103, 2005-Ohio-3122, 2005 WL 1463255, ¶11. As

an appellate court, we must accept as true any facts found by the trial court and supported

by competent, credible evidence. State v. Taylor, 5th Dist. Richland No. 16 CA 17, 2016-

Ohio-5912, 2016 WL 5118653, ¶ 43, citing Larkin, supra. With regard to the legal issues,

however, we apply a de novo standard of review and thus freely review the trial court’s

application of the law to the facts. Id.

{¶14} When reviewing the legal issues presented in a speedy-trial claim, we must

strictly construe the relevant statutes against the state. Brecksville v. Cook, 75 Ohio St.3d

53, 57, 661 N.E.2d 706, 709 (1996); State v. Colon, 5th Dist. Stark No. 09-CA-232, 2010-

Ohio-2326, 2010 WL 2060900, ¶ 12.
Richland County, Case No. 2019CA0019 and 2019CA0020 5

ISSUE FOR APPEAL.

Whether the trial court permissibly extended the trial date beyond the R.C. 2945.71

time prescriptions.

{¶15} A person charged with a first degree misdemeanor shall be brought to trial

within ninety days after the person's arrest or the service of summons.” R.C.

2945.71(B)(2).

{¶16} Meadows did not waive time in either case. Pursuant to R.C. 2945.73, a

person who is not brought to trial within the proscribed time period found in R.C. 2945.71

and R.C. 2945.72 “shall be discharged” and further criminal proceedings based on the

same conduct are barred.

{¶17} A defendant establishes a prima facie case for discharge once he

demonstrates that he has not been brought for trial within the time limits set forth in R.C.

2945.71. State v. Ashbrook, 5th Dist. Licking No. 06 CA 158, 2007-Ohio-4635, 2007 WL

2582869, ¶ 49, citing State v. Butcher, 27 Ohio St.3d 28, 30–31, 500 N.E.2d 1368 (1986).

When an appellant has established he was tried outside speedy-trial time limits, the

burden shifts to the state to show that the time limit was extended under R.C. 2945.72.

Id. at ¶31. If the state fails to produce evidence in rebuttal under R.C. 2945.72, then

discharge pursuant to R.C. 2945.73(B) is required. Id. “When reviewing a speedy-trial

issue, an appellate court must calculate the number of days chargeable to either party

and determine whether the appellant was properly brought to trial within the time limits

set forth in R.C. 2945.71.” State v. Riley, 162 Ohio App.3d 730, 2005-Ohio-4337, 834

N.E.2d 887, ¶ 19 (12th Dist.).
Richland County, Case No. 2019CA0019 and 2019CA0020 6

{¶18} Certain events toll the accumulation of speedy-trial time. R.C. 2945.72

provides for a tolling of the time limitations under certain circumstances,

The time within which an accused must be brought to trial, or, in the

case of felony, to preliminary hearing and trial, may be extended only by the

following:

(A) Any period during which the accused is unavailable for

hearing or trial, by reason of other criminal proceedings against him, within

or outside the state, by reason of his confinement in another state, or by

reason of the pendency of extradition proceedings, provided that the

prosecution exercises reasonable diligence to secure his availability;

(B) Any period during which the accused is mentally

incompetent to stand trial or during which his mental competence to stand

trial is being determined, or any period during which the accused is

physically incapable of standing trial;

(C) Any period of delay necessitated by the accused’s lack of

counsel, provided that such delay is not occasioned by any lack of diligence

in providing counsel to an indigent accused upon his request as required by

law;

(D) Any period of delay occasioned by the neglect or improper

act of the accused;

(E) Any period of delay necessitated by reason of a plea in

bar or abatement, motion, proceeding, or action made or instituted by the

accused;
Richland County, Case No. 2019CA0019 and 2019CA0020 7

(F) Any period of delay necessitated by a removal or change

of venue pursuant to law;

(G) Any period during which trial is stayed pursuant to an

express statutory requirement or pursuant to an order of another court

competent to issue such order;

(H) The period of any continuance granted on the accused’s

own motion, and the period of any reasonable continuance granted other

than upon the accused’s own motion;

(I) Any period during which an appeal filed pursuant to section

2945.67 of the Revised Code is pending.

{¶19} In the case at bar, Meadows confuses waiver with tolling. When a

defendant waives the right to a speedy trial as to an initial charge, such waiver is not

applicable to additional charges arising from the same set of circumstances that are

brought subsequent to the execution of the waiver. State v. Adams, 43 Ohio St.3d 67,

538 N.E.2d 1025, syllabus (1989). However, periods of delay resulting from motions filed

by the defendant in a previous case also apply in a subsequent case in which there are

different charges based on the same underlying facts and circumstances of the previous

case. State v. Blackburn, 118 Ohio St.3d 163, 887 N.E.2d 319, 2008–Ohio–1823,

syllabus; Accord, State v. Hammond, 5th Dist. Knox No. 15CA02, 2015-Ohio-4156, ¶21;

State v. Kasler, 5th Dist. Fairfield No. 12-CA-124, 2013-Ohio-2632, ¶12.

{¶20} Meadows did not file a written waiver of his speedy trial rights in either Case

number 18 TRC 4641 or Case Number 19 TRC 293.
Richland County, Case No. 2019CA0019 and 2019CA0020 8

{¶21} In Case Number 18 TRC 4641, the trial court granted Meadows a

continuance by Judgment Entry filed July 25, 2018. [Docket Number 7]. By Judgment

Entry filed August 24, 2018, the trial court continued the case as a result of Meadows’

jury demand to September 25, 2018. [Docket No. 8]. By Judgment Entry filed September

20, 2018, the trial court granted Meadows’ request to continue and continued the jury trial

until October 23, 2018. [Docket No. 10]. By Judgment Entry filed October 25, 2018, the

trial court continued the jury trial until November 27, 2018. [Docket No. 11]. By Judgment

Entry filed December 11, 2018, the trial court granted Meadows’s motion to continue and

continued the jury trial until January 29, 2019. [Docket No. 13]. Meadows’s jury trial

commenced on January 29, 2019.

{¶22} Meadows does not argue or raise as error that his speedy trial rights were

violated in Case Number 18 TRC 4641. Because each continuance granted in Case

Number 18 TRC 4641 is chargeable against Case Number 19 TRC 293, no violation of

Meadows’ speedy trial rights occurred in Case Number 19 TRC 293.

{¶23} Meadows First Assignment of Error is overruled.

II.

{¶24} In his Second Assignment of Error, Meadows argues that his previous

conviction for OVI that occurred in 2005 was not admissible in the present case. He

contends that he was unfairly prejudiced by the trial court’s admission of his prior

conviction.

STANDARD OF REVIEW.

{¶25} “[A] trial court is vested with broad discretion in determining the admissibility

of evidence in any particular case, so long as such discretion is exercised in line with the
Richland County, Case No. 2019CA0019 and 2019CA0020 9

rules of procedure and evidence.” Rigby v. Lake Cty., 58 Ohio St.3d 269, 271, 569 N.E.2d

1056 (1991). “Ordinarily, we review a trial court’s hearsay rulings for an abuse of

discretion. State v. Hymore, 9 Ohio St.2d 122, 128, 224 N.E.2d 126 (1967). However,

we review de novo evidentiary rulings that implicate the Confrontation Clause. United

States v. Henderson, 626 F.3d 326, 333 (6th Cir. 2010).” State v. McKelton, 148 Ohio

St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶97.

ISSUE FOR APPEAL

Whether the trial court abused its discretion by admitting evidence of Meadows

prior conviction.

{¶26} Evid.R. 404(A) provides that evidence of a person’s character is not

admissible to prove the person acted in conformity with that character. Evid.R. 404(B)

sets forth an exception to the general rule against admitting evidence of a person’s other

bad acts. The Rule states as follows: “Evidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to show that he acted in conformity

therewith. It may, however, be admissible for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or

accident.”

{¶27} A prior OVI conviction within 20 years is an element of R.C. 4511.19(A)(2).

State v. Holland, 5th Dist. Stark No. 2011 CA 00104, 2012-Ohio-486, ¶ 19. In State v.

Hoover, the Ohio Supreme Court stated:

It is crucial to note that the refusal to consent to testing is not, itself,

a criminal offense. The activity prohibited under R.C. 4511.19(A)(2) is

operating a motor vehicle while under the influence of drugs or alcohol. A
Richland County, Case No. 2019CA0019 and 2019CA0020 10

person’s refusal to take a chemical test is simply an additional element that

must be proven beyond a reasonable doubt along with the person’s

previous DUI conviction to distinguish the offense from a violation of R.C.

4511.19(A)(1)(a).

123 Ohio St.3d 418, 2009-Ohio-4993, 916 N.E.2d 1056, ¶21 [Emphasis added.] We have

therefore previously found that a trial court did not err in allowing appellee to present

evidence of a defendant’s prior conviction “as such was an element of the offense for

which the State bears the burden of proof.” Holland, supra, 2012-Ohio-486 at ¶ 21; see

also, State v. Leasure, 4th Dist. No. 15CA3484, 2015-Ohio-5327, 43 N.E.3d 477

{¶28} The Ohio Supreme Court has held that a trial court abuses its discretion

when it refuses to accept the offer of defense counsel to stipulate to the fact of a prior

conviction for the purpose of establishing the element of an offense that requires proof of

a prior conviction. State v. Creech, 150 Ohio St.3d 540, 2016–Ohio–8440, 84 N.E.3d

981. Thus, if counsel had offered to stipulate to the 2005 conviction, the trial court would

have been required to accept the stipulation. In the case at bar, trial counsel did not

stipulate to the prior conviction. Nor did counsel object when the state attempted to

introduce the prior conviction. (T. at 110).

{¶29} Accordingly, the trial court did not err in admitting evidence of Meadows’s

2005 conviction because it was an element of the crime that the state was required to

prove beyond a reasonable doubt.

{¶30} Meadows’s Second Assignment of Error is overruled.
Richland County, Case No. 2019CA0019 and 2019CA0020 11

III.

{¶31} In his Third Assignment of Error, Meadows argues it was contrary to law for

the trial court to sentence him on each OVI offense because the cases are identical. The

only difference between to the two charges is the addition of a prior conviction that

enhances the penalty. The OVI counts are based upon the same conduct in both cases.

Meadows concedes he did not object.

STANDARD OF APPELLATE REVIEW.

{¶32} Meadows did not object or raise this error in the trial court. In criminal cases

where an objection is not raised at the trial court level, “plain error” is governed by Crim.

R. 52(B), which states, "Plain errors or defects affecting substantial rights may be noticed

although they were not brought to the attention of the court.” An alleged error "does not

constitute a plain error ... unless, but for the error, the outcome of the trial clearly would

have been otherwise.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804(1978), paragraph

two of the syllabus.

{¶33} “[A]n appellate court may, in its discretion, correct an error not raised at trial

only where the appellant demonstrates that (1) there is an error; (2) the error is clear or

obvious, rather than subject to reasonable dispute; (3) the error affected the appellant’s

substantial rights, which in the ordinary case means it affected the outcome of the district

court proceedings; and (4) the error seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings.” United States v. Marcus, 560 U.S. 258, 262 130 S.Ct.

2159, 176 L.Ed.2d 1012(2010) (internal quotation marks and citations omitted).

{¶34} The defendant bears the burden of demonstrating that a plain error affected

his substantial rights. United States v. Olano, 507 U.S. at 725,734, 113 S.Ct. 1770, 123
Richland County, Case No. 2019CA0019 and 2019CA0020 12

L.Ed.2d 508(1993); State v. Perry, 101 Ohio St.3d 118, 120 802 N.E.2d 643(2004). Even

if the defendant satisfies this burden, an appellate court has discretion to disregard the

error. State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002); State v. Long, 53

Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus; Perry, supra, at

118, 802 N.E.2d at 646.

ISSUE FOR APPEAL.

Whether the trial court’s sentence of Meadows for two OVI cases was error

affecting Meadows’s substantial rights.

{¶35} The state agrees the sentences are clearly contrary to law. The state

notes that the two charges should have been merged for purposes of sentencing and

Meadows should have been sentenced on one of the two charges, as elected by the

prosecution. [Appellee’s Brief at 10].

{¶36} In State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234,

¶ 2, the Ohio Supreme Court held the imposition of separate sentences for allied offenses

of similar import is contrary to law and such sentences are void.

{¶37} There is no dispute that there is only one OVI offense in the case at bar.

The same stop and arrest was asserted in two separate cases. A second case was

commenced only to include the sentence-enhancing element of a prior conviction.

{¶38} The Fifth Amendment to the United States Constitution guarantees that no

person shall “be subject for the same offence to be twice put in jeopardy of life or limb.”

The Ohio Constitution contains a similarly worded guarantee: “No person shall be twice

put in jeopardy for the same offense.” Ohio Constitution, Article I, Section 10.1. The Ohio

Supreme Court has read these provisions to protect against three distinct wrongs: “(1) a
Richland County, Case No. 2019CA0019 and 2019CA0020 13

second prosecution for the same offense after acquittal, (2) a second prosecution for the

same offense after conviction, and (3) multiple punishments for the same offense.” State

v. Gustafson, 76 Ohio St.3d 425, 432, 668 N.E.2d 435 (1996), citing United States v.

Halper, 490 U.S. 435, 440, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989); State v. Soto, Oh.

Sup. No. 2018-0416, 2019-Ohio-4430, ¶12 (Oct. 31, 2019).

{¶39} In the case at bar, Meadows is being punished for the same OVI offense in

18 TRC 4641 and 19 TRC 293. Accordingly, we find plain error in the trial court’s

sentencing Meadows in each case. The trial court should have required that the state

select which case that it wished to proceed upon for sentencing.

{¶40} Meadows’s Third Assignment of Error is sustained.

IV.

{¶41} In his Fourth Assignment of Error, Meadows argues that he received

ineffective assistance of counsel because his trial attorney failed to request that the trial

court merge the two convictions.

STANDARD OF APPELLATE REVIEW.

{¶42} To obtain a reversal of a conviction based on ineffective assistance of

counsel, the defendant must prove (1) that counsel's performance fell below an objective

standard of reasonableness, and (2) that counsel's deficient performance prejudiced the

defendant resulting in an unreliable or fundamentally unfair outcome of the proceeding.

Strickland v. Washington, 466 U.S. 668, 687–688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674,

693(1984). A defendant's failure to satisfy one prong of the Strickland test negates a

court's need to consider the other. Strickland at 697, 104 S.Ct. at 2069, 80 L.Ed.2d at

699; State v. Madrigal, 87 Ohio St.3d 378, 2000-Ohio-448, 721 N.E.2d 52 (2000).
Richland County, Case No. 2019CA0019 and 2019CA0020 14

{¶43} The United States Supreme Court discussed the prejudice prong of the

Strickland test,

With respect to prejudice, a challenger must demonstrate “a

reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different. A reasonable probability

is a probability sufficient to undermine confidence in the outcome.” Id., at

694, 104 S.Ct. 2052. It is not enough “to show that the errors had some

conceivable effect on the outcome of the proceeding.” Id., at 693, 104 S.Ct.

2052. Counsel’s errors must be “so serious as to deprive the defendant of

a fair trial, a trial whose result is reliable.” Id., at 687, 104 S.Ct. 2052.

“Surmounting Strickland’s high bar is never an easy task.” Padilla v.

Kentucky, 559 U.S. ––––, ––––, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284

(2010). An ineffective-assistance claim can function as a way to escape

rules of waiver and forfeiture and raise issues not presented at trial, and so

the Strickland standard must be applied with scrupulous care, lest “intrusive

post-trial inquiry” threaten the integrity of the very adversary process the

right to counsel is meant to serve. Strickland, 466 U.S., at 689–690, 104

S.Ct. 2052. Even under de novo review, the standard for judging counsel’s

representation is a most deferential one. Unlike a later reviewing court, the

attorney observed the relevant proceedings, knew of materials outside the

record, and interacted with the client, with opposing counsel, and with the

judge. It is “all too tempting” to “second-guess counsel’s assistance after

conviction or adverse sentence.” Id., at 689, 104 S.Ct. 2052; see also Bell
Richland County, Case No. 2019CA0019 and 2019CA0020 15

v. Cone, 535 U.S. 685, 702, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002);

Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180

(1993). The question is whether an attorney’s representation amounted to

incompetence under “prevailing professional norms,” not whether it

deviated from best practices or most common custom. Strickland, 466 U.S.,

at 690, 104 S.Ct. 2052.

Harrington v. Richter, 562 U.S. 86, 104-105, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011).

ISSUE FOR APPEAL.

Whether there is a reasonable probability that, but for counsel’s failure to move for

merger of the sentences for the two OVI cases the result of the proceeding would have

been different

{¶44} Because we have found that the trial court’s sentencing of Meadows in each

OVI case was error affecting Meadows’s substantial rights, counsel was ineffective in

failing to raise this issue. See, State v. Carson, 10th Dist. Franklin No. 05AP-13,

2006-Ohio-2440, ¶51 (“this court held that where the failure to object does not

constitute plain error, the issue cannot be reversed by claiming ineffective assistance

of counsel.”); State v. Koogler, 10th Dist. Franklin No. 84AP-221, 1984WL5883(Sept.

6, 1984)(“the failure to object does not automatically become an ineffective

assistance of counsel unless the failure to object rises to the level of plain error. See

Jones v. Jago (1983), 701 F.2d 45, 47-48; United States v. DeWolf (1982), 696 F.2d

1, 4. As pointed out in DeWolf, to allow that claim upon failure to object would allow

a defendant to whipsaw the state by claiming inadequate representation for failure to

note objections not saved by plain error.
Richland County, Case No. 2019CA0019 and 2019CA0020 16

{¶45} Meadows’s Fourth Assignment of Error is sustained.

CONCLUSION.

{¶46} The judgment of the Mansfield Municipal Court, Richland County, Ohio is

affirmed in part, reversed in part and vacated in part. Section 3(B) (2), Article IV of the

Ohio Constitution gives an appellate court the power to affirm, reverse, or modify the

judgment of an inferior court. Meadows’s sentence in Case No. 18 TRC 293 is vacated;

Meadows’s sentence in 19 TRC 4641 is vacated. This case is remanded to the trial court

for further proceedings in accordance with this Opinion and the law.

By Gwin, P.J.,

Baldwin, J., and

Wise, Earle E., J., concur