People v. Johnny Joseph Dennel, Jr.

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
October 6, 2022

2022COA115

No. 19CA1007, People v. Dennel — Children’s Code — Juvenile
Court — Delinquency — Transfers

In this appeal, a division of the court of appeals interprets a

provision of the juvenile transfer statute contained in the Children’s

Code.

The defendant was charged in juvenile court with committing

a delinquent act that if committed by an adult would constitute a

class 2 felony. On the date of the alleged offense, the defendant

was fifteen years old and had no prior felony adjudications or

convictions. On the People’s motion and after a contested hearing,

the juvenile court waived its jurisdiction and transferred the

defendant’s case to district court for adult criminal proceedings.

Once the case was transferred to district court, the defendant

pleaded guilty to a class 4 felony and was sentenced as an adult.
 On appeal, the defendant contends that he wasn’t statutorily

eligible to have his case transferred from juvenile court to district

court because he didn’t have a prior felony adjudication. Relying on

People v. Nelson, 2015 COA 123, ¶ 12, the defendant contends that,

under section 19-2.5-802(1)(a)(I)(B), C.R.S. 2022, a child his age

charged with a felony must have a previous delinquency

adjudication for a felony before the juvenile court can transfer his

case to district court. He argues that because he didn’t have a prior

felony adjudication, the juvenile court erred by transferring his case

and the district court never acquired jurisdiction over him under

the transfer statute.

Parting ways with the division in Nelson, this division of the

court of appeals concludes that the plain meaning of the transfer

statute doesn’t condition transfer eligibility on a previous

delinquency adjudication. Because the defendant was eligible for

transfer and he doesn’t otherwise challenge his transfer from

juvenile court to district court, the division affirms the defendant’s

conviction and sentence.
COLORADO COURT OF APPEALS 2022COA115

Court of Appeals No. 19CA1007
Pueblo County District Court Nos. 17JD220 & 18CR2025
Honorable Deborah R. Eyler, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Johnny Joseph Dennel, Jr.,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division III
Opinion by JUDGE WELLING
J. Jones and Schutz, JJ., concur

Announced October 6, 2022

Philip J. Weiser, Attorney General, Marixa Frias, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Mark Evans, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Johnny Joseph Dennel, Jr., a juvenile, appeals the

judgment of conviction entered by the district court after he pleaded

guilty to manslaughter.

¶2 Dennel was charged in juvenile court with committing a

delinquent act that if committed by an adult would constitute

second degree murder, a class 2 felony. On the date of the alleged

offense, Dennel was fifteen years old and had no prior felony

adjudications or convictions. On the People’s motion and after a

contested hearing, the juvenile court waived its jurisdiction and

transferred Dennel’s case to district court for adult criminal

proceedings. Once the case was transferred to district court,

Dennel pleaded guilty to manslaughter, a class 4 felony, and was

sentenced as an adult.

¶3 On appeal, Dennel contends that he wasn’t statutorily eligible

to have his case transferred from juvenile court to district court

because he didn’t have a prior felony adjudication. Relying on

People v. Nelson, 2015 COA 123, ¶ 12, Dennel contends that, under

section 19-2.5-802(1)(a)(I)(B), C.R.S. 2022, a child his age charged

with a felony must have a previous delinquency adjudication for a

felony before the juvenile court can transfer his case to district

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 court. He argues that because he didn’t have a prior felony

adjudication, the juvenile court erred by transferring his case and

the district court never acquired jurisdiction over him under the

transfer statute.

¶4 Parting ways with the division in Nelson, we conclude that the

plain meaning of the transfer statute doesn’t condition transfer

eligibility on a previous delinquency adjudication. Because Dennel

was eligible for transfer and he doesn’t otherwise challenge his

transfer from juvenile court to district court, we affirm the

judgment.

I. Background

¶5 This case began when the People filed a petition in juvenile

court alleging that Dennel had committed a delinquent act that

constituted second degree murder, a class 2 felony, and that, at the

time of the alleged delinquent act, Dennel was fifteen years old. It’s

undisputed that when this case was filed, Dennel had no prior

felony adjudications or convictions.

¶6 Seeking to charge Dennel as an adult, the People filed a

motion requesting that the juvenile court waive its jurisdiction and

transfer the case to district court pursuant to section 19-2.5-

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 802(1)(a)(I)(B). After a four-day transfer hearing, the juvenile court

found probable cause that Dennel had committed the alleged

delinquent act and that it was in the best interests of the

community for the juvenile court to waive jurisdiction over Dennel.

Thus, over Dennel’s objection, the juvenile court transferred the

case to district court.

¶7 Rather than standing trial on the second degree murder

charge, Dennel agreed to plead guilty to manslaughter, a class 4

felony. The district court accepted Dennel’s guilty plea and

sentenced him to a suspended ten-year term in the custody of the

Department of Corrections on the condition that he complete a five-

year term in the Youthful Offender System.

II. Dennel’s Transfer Eligibility Under Section 19-2.5-
802(1)(a)(I)(B)

¶8 On appeal, Dennel contends that, under the transfer statute, a

juvenile court can’t transfer a case against a fifteen-year-old unless

the child has at least one prior felony adjudication or conviction.

Because he hadn’t previously been adjudicated or convicted of a

felony, Dennel asserts that the district court didn’t acquire

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 jurisdiction to accept his plea, enter a felony conviction against

him, and impose sentence. We disagree.

¶9 We conclude that the transfer statute doesn’t require that a

juvenile have a prior felony adjudication before the court may

transfer the juvenile’s case to district court and, based on this

interpretation, Dennel was eligible to have his case transferred to

district court.

A. Standard of Review

¶ 10 This case presents an issue of statutory interpretation, which

we review de novo. Bostelman v. People, 162 P.3d 686, 689 (Colo.

2007). Our primary task when construing a statute is to give effect

to the General Assembly’s intent. Id. (citing Klinger v. Adams Cnty.

Sch. Dist. No. 50, 130 P.3d 1027, 1031 (Colo. 2006)). In

determining the legislature’s intent, we look first to the plain

language of the statute. Id. at 690 (citing C.S. v. People in Interest of

I.S., 83 P.3d 627, 634 (Colo. 2004)). When reviewing a statute’s

plain language, we read words and phrases in context and construe

them according to their common usage, id. (citing Klinger, 130 P.3d

at 1031), and in a manner that is harmonious with other

provisions, People v. Ross, 2021 CO 9, ¶ 34 (“[W]e are duty-bound

4
 to interpret . . . statutory provisions harmoniously — that is, in a

manner that gives consistent and sensible effect to all their parts

and avoids rendering any words or phrases meaningless.”).

¶ 11 If the statutory language is clear and unambiguous, we won’t

engage in further statutory analysis. Bostelman, 162 P.3d at 689.

Indeed, it is only when a statute is ambiguous that we may employ

other tools of statutory construction, such as considering the

consequences of a given construction, the end to be achieved by the

statute, and legislative history. Id.

B. Statutory Interpretation

¶ 12 The Children’s Code creates “a system of juvenile justice that

will appropriately sanction juveniles who violate the law.” § 19-2.5-

101(1)(a), C.R.S. 2022. Subject to certain exceptions, the juvenile

court has “exclusive original jurisdiction” over cases involving

juveniles. § 19-2.5-103(1), C.R.S. 2022.

¶ 13 The transfer statute is one such exception. The transfer

statute permits the People to request that a juvenile court waive its

jurisdiction and transfer a case to district court when — and only

when — a petition contains certain allegations. Specifically, the

transfer statute provides, in pertinent part, as follows:

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 (1)(a) The juvenile court may enter an order
certifying a juvenile to be held for criminal
proceedings in the district court if:

(I) A petition filed in juvenile court alleges the
juvenile is:

(A) Twelve or thirteen years of age at the time
of the commission of the alleged offense and is
a juvenile delinquent by virtue of having
committed a delinquent act that constitutes a
class 1 or class 2 felony or a crime of violence,
as defined in section 18-1.3-406; or

(B) Fourteen years of age or older at the time of
the commission of the alleged offense and is a
juvenile delinquent by virtue of having
committed a delinquent act that constitutes a
felony; and

(II) After investigation and a hearing, the
juvenile court finds it would be contrary to the
best interests of the juvenile or of the public to
retain jurisdiction.

§ 19-2.5-802(1)(a)(I)-(II) (emphasis added).

¶ 14 The parties disagree about the proper interpretation of

subsection (1)(a)(I)(B). Dennel argues that a juvenile fourteen years

of age or older accused of committing a felony is only eligible to

have his case transferred to district court if he has also previously

been adjudicated delinquent for an act that constitutes a felony.

See Nelson, ¶ 12. In contrast, the People argue that nothing in the

statute requires a prior juvenile delinquency adjudication.

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¶ 15 We agree with the People. Our conclusion rests on the plain

language of the statute, which is where we turn first.

1. Plain Language

¶ 16 The statute spells out what must be “alleged” in a delinquency

petition for a case to be eligible for transfer to district court.

Specifically, the statute requires the delinquency petition to allege

that the juvenile is at least a certain age and that the juvenile is

accused of committing an offense of at least a certain seriousness.

For a child aged twelve or thirteen to be eligible for transfer, the

petition must allege that the juvenile committed a delinquent act

that constitutes a class 1 or 2 felony or a crime of violence, § 19-

2.5-802(1)(a)(I)(A); for a juvenile fourteen years or older to be eligible

for transfer, the petition must allege that the juvenile committed a

delinquent act that constitutes a felony, § 19-2.5-802(1)(a)(I)(B).

¶ 17 Dennel contends, however, that while the age requirements in

the statute refer to the juvenile’s age at the time of the charged

offense, the references to the level of offense contained in

subsections (1)(a)(I)(A) and (1)(a)(I)(B) describe what the petition

must allege with respect to the juvenile’s adjudicatory history. In

other words, Dennel contends that for a child of twelve or thirteen

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 to have his case transferred to district court, he must have been

previously adjudicated for a delinquent act that constitutes a class

1 or 2 felony or a crime of violence; and for a juvenile fourteen years

old or older, he must have been previously adjudicated for a

delinquent act that constitutes a felony.

¶ 18 We reject Dennel’s urged interpretation because it doesn’t

comport with the plain language of the statute. We begin our plain

language analysis by highlighting the significance of the word

“alleges” in the transfer statute — particularly the first use of this

word (in subsection (1)(a)(I)) and its impact on subsequent

language. See § 19-2.5-802(1)(a)(I) (“A petition filed in juvenile court

alleges the juvenile is . . . .”) (emphasis added).

¶ 19 Sub-subparagraphs (A) and (B) are part of, and follow the

initial language of, subsection (1)(a)(I). Therefore, they simply

describe the requisite — as yet, unproven — allegations that the

People must include in the petition to demonstrate transfer

eligibility. See Webster’s Third New International Dictionary 55

(2002) (defining “allege” as “to assert, affirm, state without proof or

before proving”) (emphasis added). Both sub-subparagraphs

contain two elements linked by the conjunction “and”; they specify

8
 (1) the juvenile’s age at the time of the offense, and (2) the offense

classification. See § 19-2.5-802(1)(a)(I)(A), (B).

¶ 20 Thus, reading sub-subparagraph (B) in conjunction with the

prefatory language in subsection (1)(a)(I), the People must allege

that the juvenile (1) is fourteen years of age or older at the time of

the offense, and (2) has committed a delinquent act that constitutes

a felony. As for the first required allegation, it’s undisputed that the

statute refers to the juvenile’s age at the time of the offense alleged

in the petition. Mindful of the unproven quality of an allegation —

and the fact that the word “alleges” applies equally to both elements

of sub-subparagraph (B) — we conclude that the second element

also refers to the present alleged offense rather than a prior felony

adjudication.

¶ 21 Reading this sub-subparagraph in context confirms our

conclusion. Under section 19-2.5-802(1)(a)(I)(A), (B), the petition

must simply “allege” that the juvenile is a “juvenile delinquent by

virtue of having committed a delinquent act.” That is, a juvenile’s

delinquency status is tied only to an unproven assertion of

delinquent conduct, not a juvenile’s already proven adjudicatory

history.

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¶ 22 Moreover, the statute’s focus on the allegations in the

“petition” (as opposed to the motion to transfer) further underscores

that the statute’s reference to the allegations of delinquent conduct

is to the conduct giving rise to the filing of the petition, not the

juvenile’s adjudicatory history. Indeed, the purpose of the petition

is to put the juvenile on notice of the facts surrounding the alleged

offense that brings him within the juvenile court’s jurisdiction. See

§ 19-2.5-502(3), (4), C.R.S. 2022 (setting forth the form and content

of a delinquency petition). The motion to transfer, not the petition,

is the logical place to include collateral information such as

adjudicatory history.

¶ 23 Our interpretation is further bolstered by the way that the

legislature differentiates between allegations of delinquency and

proven prior delinquency elsewhere in the transfer statute. For

example, when listing the factors a juvenile court must consider

when deciding whether to transfer a case, the legislature

conspicuously differentiates between the present “alleged offense”

and crimes for which the juvenile was “previously adjudicated.”

Compare § 19-2.5-802(4)(b)(II), (III) (listing factors concerning the

“alleged offense”), with § 19-2.5-802(4)(b)(IX), (X), (XIII) (listing

10
 factors that focus on whether the juvenile was “previously

adjudicated” for certain delinquent acts), and § 19-2.5-802(4)(b)(XI)

(dealing with previous commitment to the department of human

services “following an adjudication”) (emphasis added). The

contrast is particularly stark in section 19-2.5-802(4)(b)(XIII), which

includes a reference to both the current and prior offenses:

“Whether the juvenile is sixteen years of age or older at the time of

the offense and has been twice previously adjudicated a juvenile

delinquent . . . .” (Emphasis added.) Cf. § 19-2.5-801(1)(c)(II),

C.R.S. 2022 (using the language “[i]s found to have a prior

adjudicated felony offense” when imposing a prior adjudication

requirement for direct filing a case against a juvenile in district

court).

¶ 24 To put a finer point on it, for the statute to mean what Dennel

contends it means, it would need to be written differently. Instead

of providing that the petition must allege that the juvenile is

“[f]ourteen years of age or older at the time of the commission of the

alleged offense and is a juvenile delinquent by virtue of having

committed a delinquent act that constitutes a felony,” it would use

the phrase “has been previously adjudicated” in place of “is,”

11
leaving a statute reading as follows (with deleted existing language

shown in strike-through and added hypothetical language

underlined):

(1)(a) The juvenile court may enter an order
certifying a juvenile to be held for criminal
proceedings in the district court if:

(I) A petition filed in juvenile court alleges the
juvenile is:

....

(B) Fourteen years of age or older at the time of
the commission of the alleged offense and is
has been previously adjudicated a juvenile
delinquent by virtue of having committed a
delinquent act that constitutes a felony.

Indeed, as discussed above, “has been previously adjudicated” is

the phrase that the legislature has used when describing

adjudicatory history. See also, e.g., § 19-2.5-1125(2), C.R.S. 2022

(“A juvenile is a repeat juvenile offender if the juvenile has been

previously adjudicated a juvenile delinquent and is adjudicated a

juvenile delinquent for a delinquent act that constitutes a

felony . . . .”) (emphasis added). But that’s not the statute the

legislature adopted. See, e.g., Dep’t of Revenue v. Agilent Techs.,

Inc., 2019 CO 41, ¶ 16 (“[W]e must respect the legislature’s choice

12
 of language, and we will not add words to a statute or subtract

words from it.”).

¶ 25 And Nelson doesn’t persuade us otherwise, which is where we

turn next.

2. Addressing Nelson

Dennel relies on the division’s opinion in Nelson to argue that

for a fifteen-year-old’s juvenile case to be eligible for transfer, he

must have a prior adjudication. Nelson, ¶ 12.

¶ 26 The question presented in Nelson was whether the district

court had jurisdiction over Nelson, a juvenile, following a change in

the direct file statute — a change that was adopted after Nelson had

been charged but before he pleaded guilty. Id. at ¶ 2. Nelson

argued that because the felony to which he pleaded guilty was no

longer eligible for direct filing in district court, the district court

lacked jurisdiction over him and his case. Id. at ¶ 10. In rejecting

Nelson’s contention, the division held that the district court had

jurisdiction to accept Nelson’s plea and impose a sentence if

Nelson’s case was eligible for either direct file or transfer. Id. at

¶ 12. And in determining that Nelson’s case was eligible for

transfer, the division observed,

13
 According to the presentence investigation
report, Nelson had pleaded guilty to at least
three prior felony charges and was therefore a
juvenile delinquent at the time of the subject
offense. Therefore, although Nelson’s offenses
are not eligible for direct filing under the
current version of the [direct file s]tatute, they
are eligible for district court jurisdiction under
[the transfer statute].

Id. (citations omitted).

¶ 27 To be sure, in reaching its conclusion that Nelson’s case was

eligible for transfer to district court, the division in Nelson

interpreted the transfer statute to require a prior felony

adjudication — the very interpretation that Dennel is urging us to

adopt. Id. For two reasons, however, we aren’t persuaded that the

division in Nelson got the interpretation of this part of the transfer

statute correct. See People v. Daley, 2021 COA 85, ¶ 89 (we aren’t

bound by decisions of prior divisions).

¶ 28 First, the division in Nelson didn’t have to parse the statute to

the extent that we must here. In Nelson, it was undisputed that the

juvenile both pleaded guilty to a felony in the case at issue and had

prior felony adjudications. Nelson, ¶ 12 (noting that Nelson had

“pleaded guilty to at least three prior felony charges”). Thus,

regardless of whether the phrase “is a juvenile delinquent by virtue

14
 of having committed a delinquent act that constitutes a felony,”

§ 19-2.5-802(1)(a)(I)(B), referred to the charged offense or the

juvenile’s adjudicatory history, the result would have been the same

for Nelson: his case was eligible for transfer. Accordingly, the

Nelson division wasn’t required to grapple with the precise issue we

have before us: whether a juvenile is transfer-eligible without a

previous delinquency adjudication for a felony.

¶ 29 Second, for the reasons previously articulated, our reading of

the statute’s plain language leads us to a different conclusion.

Accordingly, given that the outcome in Nelson didn’t turn on this

issue and the division only addressed it in passing, we aren’t

persuaded by Nelson to depart from our plain language statutory

analysis laid out in Part II.B.1 above.

3. The Purpose of the Children’s Code and Policy Considerations
Don’t Require a Different Interpretation

¶ 30 Finally, we aren’t persuaded by Dennel’s contention that the

“overall theme” of the Children’s Code “demands that a prior felony

adjudication is necessary to transfer a fourteen- or fifteen-year-old

to adult court.”

15
¶ 31 While section 19-2.5-802(1)(a)(I) sets forth the minimum

requirements for transfer eligibility, a juvenile whose case satisfies

those minimum requirements isn’t automatically transferred to

district court upon the request of a prosecutor. Far from it.

Instead, after investigation and a hearing, the juvenile court is

required to determine whether “it would be contrary to the best

interests of the juvenile or of the public to retain jurisdiction.” § 19-

2.5-802(1)(a)(II). Among the factors the juvenile court must consider

in this inquiry are the juvenile’s previous adjudicatory history, see

§ 19-2.5-802(4)(b)(V), (IX), (X), (XI), (XIII), and the seriousness of the

charged offense, see § 19-2.5-802(4)(b)(I), (II), (III), (VII), (VIII).

¶ 32 Thus, the legislature determined that both the seriousness of

the charged offense and the juvenile’s adjudicatory history (or lack

thereof) must be taken into account when a juvenile court decides

whether to transfer a case to district court. But when drawing a

bright line with respect to who is eligible for transfer, the statute the

legislature crafted focuses only on the juvenile’s age and the

seriousness of the presently charged offense. We aren’t at liberty to

second-guess that policy judgment or add requirements to it. See

Agilent Techs., ¶ 16.

16
 C. Application

¶ 33 The petition charging Dennel alleged that he is a juvenile

delinquent “by virtue of having committed a delinquent act that

constitutes a felony” — namely, second degree murder, a class 2

felony — and that he was “[f]ourteen years of age or older at the

time of the commission of the alleged offense.” This satisfied the

requirements of section 19-2.5-802(1)(a)(I)(B), notwithstanding the

fact that Dennel had no prior felony adjudications. Dennel doesn’t

challenge any other aspect of the transfer proceedings on appeal.

Because the juvenile court complied with the transfer statute in

certifying Dennel to be held for criminal proceedings in district

court, the transfer was proper. And because the transfer was

proper, the district court had jurisdiction to accept Dennel’s plea to

manslaughter, a class 4 felony, and sentence him as it did. See

§ 19-2.5-802(1)(d)(I), (II).

III. Attorney General’s Waiver Contention

¶ 34 On appeal, the Attorney General argues, in the alternative,

that even if we were to interpret the transfer statute as Dennel

urges, Dennel’s plea to the class 4 felony of manslaughter waived

any challenge he may have to the district court’s authority to take

17
 his plea and impose a sentence. See, e.g., Patton v. People, 35 P.3d

124, 128 (Colo. 2001) (a guilty plea generally waives all

nonjurisdictional challenges to a conviction); Wood v. People, 255

P.3d 1136, 1140 (Colo. 2011) (distinguishing between a court’s

subject matter jurisdiction and its authority to act). Dennel

responds that this isn’t so because his challenge is to the district

court’s subject matter jurisdiction over his case, and this

jurisdictional challenge isn’t waivable. See, e.g., § 19-2.5-103(1)

(vesting “exclusive original jurisdiction” over juveniles in the

juvenile court “[e]xcept as otherwise provided by law”); People v.

Wetter, 985 P.2d 79, 80 (Colo. App. 1999) (a challenge to a court’s

subject matter jurisdiction survives a plea and may be raised at any

time, including for the first time on appeal).

¶ 35 At the core of this dispute is whether failure to satisfy the

statutory prerequisites for transfer is jurisdictional or not. This, in

turn, implicates whether the General Assembly may constitutionally

limit the general jurisdiction of district courts. See Colo. Const.

art. VI, § 9(1) (“The district courts . . . shall have original

jurisdiction in all civil, probate, and criminal cases, except as

otherwise provided herein . . . .”); cf. People ex rel. Terrell v. Dist. Ct.,

18
 164 Colo. 437, 441, 435 P.2d 763, 765 (1967) (recognizing that the

General Assembly could, without offending the constitution, remove

the Denver District Court’s jurisdiction over criminal cases

involving children under the age of sixteen charged with felonies by

exercising its “power to create and define crimes” and “within

reasonable limits [to] fix the age below which there can be no

criminal responsibility”); People v. Sandoval, 2016 COA 57, ¶¶ 20-

22 (framing issues related to the direct file statute as implicating

the General Assembly’s authority to limit the Denver District

Court’s constitutional jurisdiction).

¶ 36 Because we conclude that, based on his age and the charge

contained in the petition, Dennel was eligible for transfer, we leave

for another day the question of whether a juvenile who is statutorily

ineligible for transfer to district court waives a challenge to the

district court’s authority over him by entering a guilty plea in

district court or if that defect is jurisdictional such that it survives

the plea and can be raised for the first time on appeal. See People

v. Timoshchuk, 2018 COA 153, ¶ 14 (recognizing that courts should

avoid constitutional issues that need not be resolved in order to

decide a case); see also Cnty. Ct. v. Allen, 442 U.S. 140, 154 (1979)

19
 (Courts “have a duty to decide constitutional questions when

necessary to dispose of the litigation before them. But they have an

equally strong duty to avoid constitutional issues that need not be

resolved in order to determine the rights of the parties to the case

under consideration.”).

IV. Conclusion

¶ 37 For the foregoing reasons, we affirm the district court’s

judgment.

JUDGE J. JONES and JUDGE SCHUTZ concur.

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