STATE OF NEW JERSEY VS. DAWAN INGRAM (14-03-0827, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0592-20

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

DAWAN INGRAM,

Defendant-Respondent.
________________________

Argued March 16, 2021 – Decided April 1, 2021

Before Judges Haas and Natali.

On appeal from an interlocutory order of the Superior
Court of New Jersey, Law Division, Essex County,
Indictment No. 14-03-0827.

Frank J. Ducoat, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for appellant (Theodore N. Stephens II, Acting Essex
County Prosecutor, attorney; Frank J. Ducoat, of
counsel and on the brief).

Alison Perrone, First Assistant Deputy Public
Defender, argued the cause for respondent (Joseph E.
Krakora, Public Defender, attorney; Alison Perrone, of
counsel and on the brief).
PER CURIAM

By leave granted, the State appeals from the Law Division's September

28, 2020 order, which denied its motion to disqualify Andrew Burroughs, Esq.,

an attorney assigned by the Office of the Public Defender (OPD), from

representing defendant in connection with his petition for post-conviction relief

(PCR). The State asserted that Burroughs was barred from serving as

defendant's designated attorney under RPC 1.9(a) because Burroughs had

previously worked as an assistant prosecutor on the case that led to the same

convictions from which he was now seeking PCR on defendant's behalf.

After considering this contention in light of the record and the applicable

law, we agree that RPC 1.9(a) clearly prohibits Burroughs from representing

defendant on his PCR petition. Therefore, we reverse the September 28, 2020

order and remand for further proceedings.

I.

By way of background, RPC 1.9(a) addresses a lawyer's duties to former

clients and states:

A lawyer who has represented a client in a matter shall
not thereafter represent another client in the same or a
substantially related matter in which that client's
interests are materially adverse to the interests of the

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 former client unless the former client gives informed
consent confirmed in writing. [1]

As our Supreme Court stated in its seminal decision interpreting this Rule:

In clear language, RPC 1.9(a) begins with a prohibition
that precludes an attorney from engaging in the
representation of an adverse client in the same matter
unless the former client consents in writing. RPC
1.9(a). Therefore, if the prior and subsequent matters
are indeed the same, the representation, absent written
consent of the former client, is prohibited.

[Twenty-First Century Rail Corp. v. N.J. Transit Corp.,
210 N.J. 264, 275-76 (2012).]

In strictly interpreting the terms of this Rule, the Supreme Court also stated:

We recognize that a client's right to be represented by
counsel of [his] choosing is an important one to be both
cherished and protected. We also reiterate, however,
that the right is not unfettered, but is one that can only
be appropriately exercised in careful compliance with
the [Rules of Professional Conduct] that govern
attorneys and that serve to protect the legitimate
interests of their former clients. In particular, the clear
proscription included in RPC 1.9(a) against
undertaking representation, in the same matter, of a
client whose interests are materially adverse to a
previously-represented client requires that the motion
to disqualify be granted.

[Id. at 279 (emphasis added).]

1
RPC 1.9(d) further provides that "[a] public entity cannot consent to a
representation otherwise prohibited by this Rule."
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 II.

The facts underlying Burroughs' past work with the State on the trial that

resulted in defendant's convictions, and his subsequent attempt to serve as

defendant's PCR attorney in a challenge to those convictions, are not in dispute.

We address each stage of the litigation in turn.

A.

In March 2014, an Essex County grand jury charged defendant in a three-

count indictment with first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2);

second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and

second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-

4(a). State v. Ingram, No. A-0463-16 (App. Div. Apr. 12, 2019) (slip op. at 1,

5), certif. denied, 240 N.J. 12 (2019).

Defendant was tried before a jury in a trial that took much of the month

of June 2016 to complete. Sometime before the proceedings began on the

morning of June 22, 2016, which was the day before the State rested its case in

chief, the trial judge received a telephone call from Juror No. 1. The juror

explained that the county prosecutor's office had executed a search warrant at

her home earlier that morning in connection with a criminal investigation of her

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adult son. When no one immediately answered the door at the juror's house, the

officers "ma[d]e [a] forceful entry" of the residence.

When the attorneys for both sides later arrived in court, the judge advised

them of the call and stated that "[t]he police were kind enough to drop [the juror]

off and she is now downstairs." After some discussion, the judge and the parties

agreed they should question the juror.

The judge called Juror No. 1 to the courtroom. After asking the juror to

confirm the nature of the search warrant that had been executed at her home, the

judge inquired as to whether the fact that the State "is the person [sic] bringing

[that] matter forward, would . . . in any way, interfere with your ability to be fair

and impartial in this case." The juror replied, "[n]o."

Roger Imhof, Esq., the assistant prosecutor for the State, then asked the

juror if she would "be able to focus on the trial" as the result of what had

happened that morning. The juror answered, "I honestly don't know." The juror

also explained that the matter involving her son would "[p]robably" be

"weighing on her mind . . . ." In response to questions posed by defendant's

attorney, the juror stated that although the incident with her son would not

"impact upon [her] ability to be fair and impartial in this case[,]" she "honestly

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[did not] know" whether it would "impede [her] ability to concentrate on what's

going on" during the trial.

The judge asked Juror No. 1 to leave the courtroom. At that point, Imhof

expressed concern that the juror would be too distracted by her son's case to

concentrate on the issues involved in defendant's trial. At the same time, he

acknowledged that the juror stated she could be "fair and impartial to the State."

As an alternative to excusing the juror for cause, Imhof suggested that the judge

immediately designate Juror No. 1 as the alternate juror rather than waiting to

make that determination at the end of the trial.2 That way, according to the

prosecutor, the parties would not have to worry if the juror would be distracted

since she would only serve on the jury during its deliberations if one of the

remaining jurors needed to be excused. If that occurred, Imhof proposed that

the court and parties voir dire the juror again to ensure she had paid attention to

the testimony and remained impartial.

The judge suggested that she and the attorneys "do some legal research to

see if we can make that understanding, as to whether she would be the alternate."

2
Although the record is not absolutely clear on this point, it appears there were
thirteen jurors remaining on the trial panel at that point.

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In response, Imhof told the judge that he could research the issue "and have

Appellate [3] do some research for your Honor . . . ."

Defendant's attorney agreed that Juror No. 1 should be retained, but she

did not concur with Imhof's suggestion that the judge prematurely designate the

juror as an alternate. After stating that she "still need[ed] some research[,]" the

judge asked Imhof "if [he] could, you know, get [his] Appellate section to look

at it" and she would ask her law clerk to do the same. When it became clear that

defendant's attorney was not going to consent to Imhof's proposal, he stated that

the judge should excuse Juror No. 1 from the case. However, the judge prevailed

upon the parties to research the issue before making any final requests

concerning the juror's status on the jury.

At that point, the judge brought Juror No. 1 back into the courtroom and

asked her to let the court know if things became "too much" for her during the

trial for her to remain as a fair and impartial juror. The juror agreed to do so.

Burroughs worked as an assistant prosecutor in the appellate unit of the

Essex County Prosecutor's Office. As part of his duties, Burroughs regularly

3
By "Appellate," Imhof was referring to his office's appellate unit, in which
Burroughs worked as an assistant prosecutor.
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provided research assistance and guidance to his trial team colleagues on issues

arising during the course of the office's prosecutions.

Sometime during the lunch break, Imhof spoke to Burroughs about the

issues involving Juror No. 1. At 1:50 p.m., after the trial had resumed for the

afternoon, Burroughs sent an email to Imhof concerning his request for an

opinion on the question presented by Juror No. 1's encounter with the

prosecutor's office earlier that day. Although the email did not refer to the

defendant's case by name, 4 it specifically mentioned Juror No. 1 and the

equivocal responses she had given during the voir dire. In the email, Burroughs

told Imhof:

Question: Does a trial court have the discretion to sua
sponte designate a juror as an alternat[e] rather than use
the random process procedure expressed in Rule 1:8-
2(d)(1).

Answer: No[.] [T]rial court does not have that
discretion under Rule 1:8-2(d)(1), which provides "If
more than such number are left on the jury at the
conclusion of the court's charge, the clerk of the court
in the jury's presence shall randomly draw such number
of names as will reduce the jury to the number required
to determine the issues."

As we discussed in your case, Juror 1 appears equivocal
about whether she can focus on the trial. This apparent
equivocation should be resolved and placed on the

4
The email was captioned "juror alternate selection."
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 record through proper voir dire. If the juror continues
to express equivocation, the court should excuse her
from further service in this case.

[(Emphasis added).]

Burroughs' opinion was not acknowledged or addressed by the attorneys

or the judge on June 22 and, therefore, it appears that Imhof did not review his

colleague's email until after the trial ended for the day. In this regard, the judge

reminded the attorneys to "look up the issue that we started with this morning"

after she excused the jurors at the conclusion of that afternoon's testimony.

Before the jury was summoned to the courtroom the next day, Imhof

reported that "we did some research on the jury issue." After briefly recapping

what had transpired the previous morning, Imhof provided the court with the

substance of Burroughs' legal opinion, and stated:

I think we should again voir dire [Juror No. 1]
. . . see how she's doing, . . . where her mind is. And
again, Judge, at this point if she says that she's
equivocal, she's unsure how she could stay focused,
then I'd ask that she be removed Judge, and we go with
the [twelve remaining jurors].

We're at the end of the trial. But I don't think we
could take a chance and I think even if the defense
wants her, I don't think it's something that [the] defense
can waive. I think a reviewing court, Appellate Court,
would say that the [trial] [c]ourt, on its own should have
su[a] sponte removed the juror based on what
happened.

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 In response, defendant's attorney asserted that the judge had appropriately

instructed the juror to let the court know if she felt she was having any

difficulties maintaining her concentration. Because the juror had not done so,

defense counsel argued there was no need to remove the juror from the panel.

The judge then had Juror No. 1 come to the courtroom. In response to two

questions posed by the judge, the juror affirmed she would "continue to listen

wholeheartedly to the . . . case" and would be able to "decide this case by being

fair and impartial." Imhof and defendant's attorney did not ask any follow-up

questions. The judge then called the remaining jurors into the courtroom and

the trial continued.

At the conclusion of the trial, Juror No. 1 was designated as the jury's

foreperson. After its deliberations, the jury convicted defendant of all three

charges. Ingram, (slip op. at 1). After appropriate mergers, the judge sentenced

defendant to an aggregate fifty-year term in prison, with an 85% parole

ineligibility term pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. Id.

at 5.

B.

Defendant filed a direct appeal challenging his convictions and sentence.

Id. at 5-6. Burroughs did not participate on either side in this stage of the

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proceedings, although the incident regarding Juror No. 1 that had been the

subject of the advice he provided to the trial team was one of the issues

defendant raised in this part of his case.

In this regard, defendant argued for the first time on appeal that "the trial

court erred by not giving curative instructions after two juror irregularities"

occurred at trial, including the incident involving Juror No. 1. Id. at 13. He also

asserted that his trial attorney provided him with ineffective assistance. Ibid.

We determined that both of these contentions lacked merit. Ibid.

Addressing defendant's argument regarding the judge's handling of Juror No. 1,

we stated:

During the trial, Juror [No. 1] informed the judge
the Essex County Prosecutor's Office executed a search
warrant at her . . . house in an unrelated case. She said
this would not affect her ability to be impartial but
added the search was a surprise to her, and she was
unsure whether it would decrease her focus on the trial.
After a discussion with counsel, the trial court did not
dismiss Juror [No. 1] but instructed her to let the court
know if her concentration was diminished.

[Id. at 14.]

In his direct appeal, defendant argued that the judge should have given an

additional curative instruction. Id. at 14-15. In rejecting this argument, we

concluded that because "Juror [No. 1] was instructed to inform the court if she

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felt she could not continue, and she felt she could continue to be impartial[,]

[n]o further curative steps were necessary." Id. at 15.

We did not address the merits of defendant's argument that his trial

attorney failed to provide him with effective assistance because defendant did

"not offer a reason why his trial counsel's performance fell below an acceptable

standard." Id. at 18. Thus, we were not able to "review [defendant's] claim" on

this point at the time of his direct appeal. Ibid.

We rejected defendant's remaining contentions and affirmed his

convictions and fifty-year aggregate sentence. However, we remanded the

matter to the trial court to address a mistake made in the assessment of a

monetary penalty. Id. at 19-20.

C.

We now turn to the next chapter in the parties' ongoing litigation. In

November 2019, defendant filed a timely petition for PCR. By this time,

Burroughs was no longer working as an assistant prosecutor in the Essex County

Prosecutor's Office, and he was now doing criminal defense work. The OPD

sometimes assigned Burroughs to represent indigent defendants in criminal

matters.

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 The OPD assigned Burroughs to represent defendant in connection with

his PCR petition. Burroughs asserts he did not recall his involvement in the

criminal trial that led to defendant's convictions at that time. He entered a notice

of appearance as defendant's designated counsel on May 22, 2020.

Two months later, on July 28, 2020, Burroughs filed a brief in support of

defendant's petition with the trial court. He also emailed a copy of his brief to

Imhof and another assistant prosecutor. Later that day, Imhof pulled his file on

the case and found the opinion that Burroughs had prepared during defendant's

trial on the issue involving Juror No. 1.

The next day, Imhof sent an email to Burroughs enclosing a copy of

Burroughs' June 22, 2016 opinion. Imhof reminded Burroughs that he had

worked on defendant's case while he was employed by the Essex County

Prosecutor's Office and that he was not permitted to represent defendant in the

PCR proceeding under RPC 1.9.

Burroughs responded by email and advised Imhof that he did not believe

he had a conflict because his involvement at the trial "was limited to [a] very

narrow question of law that could apply to any case that [he] was asked about

while at the prosecutor's office." Burroughs also asserted that his "recusal at

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this point would deny [defendant] his Sixth Amendment right to choice of

counsel."

The State then filed a motion to disqualify Burroughs as defendant's

attorney and the matter was assigned to the same judge who had presided at

defendant's murder trial. This judge was also responsible for addressing

defendant's PCR petition. Burroughs opposed the State's motion.

Following oral argument, the judge rendered a short oral decision denying

the State's motion to disqualify Burroughs pursuant to RPC 1.9. The judge

recognized that she had asked Imhof to have the appellate unit in which

Burroughs worked address the issue regarding Juror No. 1's participation on the

jury. The judge also acknowledged that Burroughs provided advice to the trial

team that was provided to the court on this issue. In addition, the judge stated

that she based her decision not to designate Juror No. 1 as an alternate juror and

to permit the juror to remain on the panel on the advice Burroughs conveyed

through Imhof.

Nevertheless, the judge determined that Burroughs' representation was

"fleeting"5 and his opinion was conveyed in an email that was "not captioned by

5
The judge also described Burroughs' participation in the murder trial as
"temporal at best" and "rather de minimis."
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the case name, [did] not identify the defendant, [and did not] discuss[] any

substantive facts related to the case." The judge further noted that Burroughs

stated he did not recall providing the advice that his employer relied on in

addressing the issue before the trial court. Therefore, the judge ruled that

Burroughs should not be disqualified from representing defendant in the PCR

proceeding.

As a further reason for denying the State's motion, the judge stated that

"defense counsel has invested significant time and competence as PCR counsel.

The [OPD] has already expended significant funds, and would be obliged to

expend further unnecessary expenditures during a State budget crisis, if it is

required to engage . . . a new attorney." The judge also expressed concern that

the State waited until after Burroughs submitted his PCR brief to file the

disqualification motion and stated that "this motion would disrupt the

attorney/client relationship that has developed between [defendant] and PCR

counsel."

On October 29, 2020, we granted the State's motion for leave to appeal

the judge's September 28, 2020 order denying its motion to disqualify

Burroughs.

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 III.

On appeal, the State argues that under the clear provisions of RPC 1.9(a),

Burroughs was prohibited from representing defendant in his attempt to overturn

the convictions that Burroughs had assisted in obtaining against defendant on

behalf of the State. We agree.

Our standard of review is well settled. "[A] determination of whether

counsel should be disqualified is, as an issue of law, subject to de novo plenary

appellate review." State v. Faulcon, 462 N.J. Super. 250, 254 (App. Div. 2020)

(alteration in original) (quoting City of Atl. City v. Trupos, 201 N.J. 447, 463

(2010)). "'Where . . . the trial judge had no factual disputes to resolve on

credibility grounds and only legal conclusions to draw,' reviewing courts do not

'defer to the trial judge's findings' or ultimate decision." State v. Hudson, 443

N.J. Super. 276, 282 (App. Div. 2015) (quoting State v. Bruno, 323 N.J. Super.

322, 331 (App. Div. 1999)). "The burden rests with the State to demonstrate a

disqualifying conflict exists." Faulcon, 462 N.J. Super. 254 (quoting Hudson,

443 N.J. Super. at 282).

Applying this standard, it is clear that Burroughs may not represent

defendant in his attempt to overturn his convictions. Burroughs served as an

assistant prosecutor at defendant's trial and, during the course of that

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employment, provided legal advice to his client concerning the proper handling

of a juror issue that threatened to disrupt the trial just as it was nearing its

conclusion. Because Burroughs was able to guide Imhof, his colleague on the

trial team, along the correct path by dissuading him from seeking to have the

juror prematurely designated as an alternate, the judge permitted the juror to

remain on the panel, thus averting a possible mistrial at the trial level of the

proceedings or an additional appellate issue.

Burroughs now seeks to switch sides in the next stage of this same case

by becoming defendant's lawyer as he seeks to overturn the convictions through

a petition for PCR. Defendant's interests in this chapter of the proceedings are

certainly "materially adverse to the interests of the" State, which is Burroughs'

former client. RPC 1.9(a). The State has not consented to this representation

as required by RPC 1.9(a) and, indeed, it may not "consent to a representation

otherwise prohibited by [that] Rule." RPC 1.9(d).

Accordingly, RPC 1.9(a)'s "plain prohibition of subsequent representation

in the same matter" clearly bars Burroughs from acting as defendant's attorney

as he attempts to obtain PCR from his convictions. Twenty-First Century Rail

Corp., 210 N.J. at 276. Therefore, the trial judge erred by denying the State's

motion to disqualify Burroughs.

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 On behalf of defendant, the OPD argues that Burroughs did not truly

represent the State at the trial stage of this case because Burroughs only

addressed one "generic" question in a "fleeting" manner and did so in a memo

that did not identify defendant's case by name or docket number. This argument

lacks merit.

The question regarding the continued participation of Juror No. 1 was not

a "de minimis," "fleeting," or "generic" issue. It diverted the court's and the

parties' attention for a good part of the morning on the next to last day of the

State's presentation. The issue was only able to be resolved the next day after

Imhof reached out to Burroughs to conduct the research needed to address the

question presented. Further demonstrating the importance of the issue, the judge

asked that the prosecutor's appellate unit assist the court in evaluating Imhof's

suggestion that she designate Juror No. 1 as an alternate.

The fact that Burroughs' memo did not identify defendant by name or his

case by its docket number is of no moment. There is no dispute that Imhof

discussed the case with Burroughs, who referenced that discussion and Juror No.

1 in the memo. Therefore, both Imhof and Burroughs knew what case Burroughs

was addressing in his opinion.

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 Contrary to the judge's oral decision, RPC 1.9(a) also does not impose a

"temporal" requirement on an attorney's representation of a client. It may have

only taken Burroughs fifteen minutes to research and resolve the issue posed to

him by Imhof. However, there is no question that based on his work on this

portion of the case, Burroughs clearly acted as an assistant prosecutor involved

in the State's prosecution of defendant.

We also disagree with defendant's contention that the issue Burroughs

addressed "was of no consequence" and "was not raised on defendant's [direct]

appeal." As discussed above, the issue regarding Juror No. 1 threatened to

impede, if not derail, the trial as it entered its final days. Because other j urors

had already been excused, there were only thirteen jurors remaining. Therefore,

a careful analysis of whether yet another juror should be removed from the panel

was needed. Burroughs provided that evaluation and, as a result, the State, as

Burroughs' client, was able to continue the trial and obtain convictions against

defendant on all three counts of the indictment.

In addition, the incident involving Juror No. 1 was an issue during

defendant's direct appeal. Defendant argued that the judge erred by failing to

give additional curative instructions after she decided not to excuse the juror.

Ingram, (slip op. at 13-15). Therefore, the question Burroughs addressed and

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resolved for his client was certainly a consequential one for both defendant and

the State.

The OPD also asserts on defendant's behalf that the State waived its ability

to object to Burroughs' switch from the State's side to defendant's because it did

not challenge Burroughs' participation until sixty-eight days after he filed

defendant's PCR brief. We disagree.

When Burroughs filed his notice of appearance in May 2020, he did not

remember that he had worked on this case while employed as an assistant

prosecutor. Therefore, he did not seek the State's written consent to the

representation as required by RPC 1.9(a). Twenty-First Century Rail Corp., 210

N.J. at 276. Thus, we cannot fault Imhof, who also stated he did not immediately

recall Burroughs' participation, for not addressing the conflict when Burroughs

submitted his notice of appearance. After Burroughs filed his brief on behalf of

defendant on July 28, 2020, Imhof found Burroughs' June 2016 memo and

sought Burroughs' voluntary recusal the very next day. Under these

circumstances, we are satisfied that the State's objection was timely filed.

Moreover, the "waiver" cases cited by defendant are clearly

distinguishable from this matter. For example, in Alexander v. Primerica

Holdings, Inc., the District Court held that a party waived its ability to move to

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disqualify counsel because it waited over three years to make its motion, which

it filed on the eve of trial. 822 F. Supp. 1099, 1115-16 (D.N.J. 1993). Similarly,

in Commonwealth Ins. Co. v. Graphix Hot Line, Inc., 808 F. Supp. 1200, 1209

(E.D.P.A. 1992), the party seeking the disqualification waited two years to file

it and then did so just a few weeks before the trial. Here, the State filed the

motion to disqualify Burroughs one day after Imhof confirmed that his former

colleague had assisted him in addressing the issue regarding Juror No. 1 in the

trial that resulted in the convictions that Burroughs now seeks to overturn.

We also reject the assertion that the State waited until after it received

Burroughs' brief in order to obtain a tactical advantage in the PCR portion of

this long-running litigation and to impose an undue hardship upon defendant.

While the OPD will have to appoint a different attorney for defendant, the

arguments raised by Burroughs will certainly be subject to that attorney's review

and possible presentation in a new brief. Although there will be a delay in the

disposition of defendant's petition, it will be a relatively short one because

Burroughs demonstrated that an attorney, with a caseload of other matters, could

review the entire trial file and prepare a brief within a span of only two months.6

6
The brief Burroughs prepared challenging defendant's convictions is not a part
of the record on appeal.

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Moreover, defendant will not incur any financial hardship in this case. As an

indigent OPD client, he will be assigned a new attorney at no cost or expense to

him.7

Finally, Burroughs' disqualification will not deprive defendant of his

"Sixth Amendment right to counsel[, which] encompasses the right to be

represented by the counsel of his . . . choosing . . . ." Faulcon, 462 N.J. Super.

at 254 (quoting Hudson, 443 N.J. Super. at 283). This is so because "[t]he right

to choose counsel is circumscribed by the court's power to guard against

conflicts of interest, and to vindicate the court's independent interest in ensuring

that criminal trials are conducted within the ethical standards of the profession

and that the legal proceedings appear fair to all who observe them." Ibid.

(citations and internal quotation marks omitted).

"This squares with the principle that a defendant's Sixth Amendment right

to effective assistance of counsel mandates counsel provide both adequate and

conflict-free representation." Hudson, 443 N.J. Super. at 283-84 (citing United

States v. Moscony, 927 F.2d 742, 748 (3d Cir. 1991)). Because Burroughs

cannot provide this assistance to defendant in the face of the clear language of

7
We again note that RPC 1.9(d) prohibits the prosecutor from consenting "to a
representation otherwise prohibited by" RPC 1.9(a). Moreover, no "waiver" of
the conflict was permissible.
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RPC 1.9(a), he must be disqualified. Twenty-First Century Rail Corp., 210 N.J.

at 279.

In sum, we reverse the trial judge's September 28, 2020 order and

disqualify Burroughs from further representation of defendant in this matter.

We remand to the Law Division for further proceedings consistent with this

opinion.

Reversed and remanded. We do not retain jurisdiction.

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