State v. Ricky Usrey

July 1 2009

DA 08-0050

IN THE SUPREME COURT OF THE STATE OF MONTANA

2009 MT 227

STATE OF MONTANA,

Plaintiff and Appellee,

v.

RICKY JOE USREY,

Defendant and Appellant.

APPEAL FROM: District Court of the Seventh Judicial District,
In and For the County of Richland, Cause No. DC-99-21
Honorable Katherine M. Irigoin, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Jim Wheelis, Chief Appellate Defender; Roberta R. Zenker, Assistant
Appellate Defender, Helena, Montana

For Appellee:

Hon. Steve Bullock, Montana Attorney General; Sheri K. Sprigg,
Assistant Attorney General, Helena, Montana

Mike Weber, Richland County Attorney, Sidney, Montana

Submitted on Briefs: November 26, 2008

Decided: July 1, 2009

Filed:
__________________________________________
Clerk
Justice John Warner delivered the Opinion of the Court.

¶1 Ricky Joe Usrey was convicted by his plea of guilty of the offense of sexual

intercourse without consent. He later moved to withdraw his guilty plea. The Seventh

Judicial District Court, Richland County, denied Usrey’s motion and he appeals.

¶2 Usrey raises the following issues on appeal:

¶3 Issue 1: Did the District Court err in concluding that Usrey’s plea of guilty was

voluntary?

¶4 Issue 2: Did the District Court err in admitting the testimony of Usrey’s former

attorney?

BACKGROUND

¶5 Pursuant to an order transferring the case from Youth Court to District Court, the

State filed an information charging Usrey, who was 17 years old at the time, with sexual

intercourse without consent for forcing himself on a 6-year-old girl.

¶6 Usrey, after a consultation with his appointed counsel, pled not guilty to the

charge on August 17, 1999. Later, again with the advice of counsel, Usrey entered into a

written plea agreement wherein he acknowledged, inter alia, that he waived the right to

have the jury instructed on a lesser offense, that the court was not bound by the State’s

recommendations, and that he could be sentenced to the maximum penalty provided by

law.

¶7 At the continued arraignment, where Usrey changed his plea to guilty, the District

Court confirmed he read through the agreement carefully, went over it with his attorney,
2
and understood it. The court outlined the agreement’s waiver of rights provisions and

asked Usrey if he understood the consequences of the agreement. Usrey said he

understood what rights he was waiving and described why he thought he was guilty.

Further details of the plea colloquy are discussed below. The District Court then

committed Usrey to the Montana Department of Corrections (DOC) for placement in an

appropriate facility or program for a period of 15 years, with all but five years of the

commitment suspended. After serving four years at Montana State Prison, Usrey was

released to the suspended portion of his commitment upon the conditions he attend sex

offender treatment, register as a sex offender, notify his probation officer if he changed

his residence, and abstain from alcohol and drugs.

¶8 Several months after his release from prison, the District Court revoked Usrey’s

probation and recommitted him to DOC for ten years with the entire commitment

suspended. A couple of months later, Usrey again violated the conditions of his

probation. As a result, the District Court revoked his DOC commitment and again

recommitted him to DOC for ten years, with all but five years suspended. Usrey then

filed the motion to withdraw his guilty plea at issue in this case. His motion alleged that

he entered his plea involuntarily because he is “mentally retarded” and his attorney failed

to sufficiently explain the plea agreement to him. He alleged he did not understand the

agreement he signed seven years earlier, and the District Court did not adequately explain

to him the rights he was waiving at the continued arraignment.

¶9 The District Court conducted a hearing on Usrey’s motion to withdraw his guilty
3
plea. At the hearing, a psychologist retained by Usrey’s attorney to evaluate his “limited

cognitive and academic abilities,” testified Usrey had below average intelligence, with an

IQ of 71, and read at a second-grade level, but is not “mentally retarded.” The

psychologist opined that for Usrey to fully understand the plea agreement, someone

would have to verbally communicate its details to him.

¶10 The State offered the testimony of Thomas Halvorson, the attorney who

represented Usrey during plea negotiations and at the continued arraignment. Usrey

objected to Halvorson testifying on the grounds that it would violate his attorney-client

privilege. The District Court overruled the objection. Halvorson testified that he

explained the plea agreement to Usrey in a series of phone calls, letters, and face-to-face

meetings.

¶11 The District Court denied Usrey’s motion to withdraw his guilty plea, concluding

that Halvorson had sufficiently explained the written plea agreement to him, the

sentencing court’s colloquy with him when he pled guilty was adequate, and Usrey was

mentally competent to enter the guilty plea. Usrey appeals, reiterating his claims that the

plea colloquy was inadequate, that he did not understand to what he was pleading, and

that the District Court erred in relying on the testimony of Halvorson because his

testimony violated the attorney-client privilege.

STANDARDS OF REVIEW

¶12 We review the denial of a motion to withdraw a guilty plea de novo. State v.

Tyler, 2009 MT 75, ¶ 10, 349 Mont. 461, 204 P.3d 685; State v. McFarlane, 2008 MT
4
18, ¶ 8, 341 Mont. 166, 176 P.3d 1057.

¶13 We accept a district court’s findings of fact on a motion to withdraw a plea, unless

they are clearly erroneous. Findings of fact are clearly erroneous if they are unsupported

by substantial evidence, the district court misapprehended the effect of the evidence, or a

review of the record convinces this Court that the district court made a mistake.

McFarlane, ¶ 8. We review the district court’s conclusions of law for correctness.

McFarlane, ¶ 8.

¶14 We review issues involving the admission of evidence for an abuse of discretion.

State v. Foston, 2009 MT 191, ¶ 10, 351 Mont. 85, ___ P.3d ___.

DISCUSSION

¶15 Issue 1: Did the District Court err in concluding that Usrey’s plea of guilty was

voluntary?

¶16 On appeal, Usrey first claims his plea was not voluntary because when he pled

guilty, the District Court did not advise him of the maximum possible punishment for

sexual intercourse without consent.

¶17 A plea of guilty is constitutionally valid only to the extent it is voluntary and

intelligent. Tyler, ¶ 11; State v. Lone Elk, 2005 MT 56, ¶ 13, 326 Mont. 214, 108 P.3d

500 (citing Bousley v. United States, 523 U.S. 614, 618, 118 S. Ct. 1604, 1609 (1998)).

The ultimate test for withdrawal of a guilty plea is whether it was voluntary. Tyler, ¶ 11;

Lone Elk, ¶ 14. For a defendant’s guilty plea to be voluntary, he must be “‘fully aware of

the direct consequences of the plea, including the value of any commitments made to him
5
by the court, the prosecutor or his own counsel.’” Lone Elk, ¶ 21 (quoting Brady v.

United States, 397 U.S. 742, 755, 90 S. Ct. 1463, 1472 (1970)). In our assessment of

voluntariness, we consider the facts of each case, which may include the adequacy of the

court’s interrogation of a defendant who pleads guilty. State v. Swensen, 2009 MT 42, ¶

12, 349 Mont. 268, 203 P.3d 786. For a plea to be voluntary, the defendant must be

mentally competent and able to understand the plea. Lone Elk, ¶ 21. Montana law

requires a district court to determine that a defendant understands certain consequences of

his guilty plea, such as the maximum penalty for the defendant’s crime. Section 46-12-

210(1)(a)(iii), MCA.

¶18 Although the written plea agreement does not state the specific maximum penalty

upon a conviction of sexual intercourse without consent and the District Court did not

state the penalty when Usrey pled guilty, the District Court did ask Usrey if he was

mindful of the maximum penalty for sexual intercourse without consent. He said he was.

The maximum penalty is clearly stated in the information. The transcript of the

continued arraignment indicates that the District Court had previously discussed the

maximum penalty with Usrey, and he does not argue that this is not so. Further, the plea

bargain called for a sentence far less than the maximum penalty. The sentence imposed,

that Usrey bargained for, is far less than the maximum. We conclude Usrey understood

the maximum penalty for sexual intercourse without consent when he pled guilty.

¶19 Usrey next argues that his plea was not voluntary because the District Court did

not advise him at the time he changed his plea to guilty that if it did not accept the plea
6
agreement, he might not be allowed to withdraw his plea. Section 46-12-210(1)(d),

MCA, provides:

Before accepting a plea of guilty or nolo contendere, the court shall
determine that the defendant understands . . . that if the defendant pleads
guilty or nolo contendere in fulfillment of a plea agreement, the court is not
required to accept the terms of the agreement and that the defendant may
not be entitled to withdraw the plea if the agreement is not accepted
pursuant to 46-12-211[.]

¶20 Usrey’s plea agreement states that the court is not bound by the plea agreement

and that if Usrey chose to plead guilty, all that remains for the court to do is sentence

him. The District Court advised Usrey that if he pled guilty there would be no trial, and

again reminded him that the court was not bound by the agreement. Usrey was, in

essence, advised that his guilty plea would be final, even if the court did not accept the

sentencing recommendation. The District Court accepted the terms of the plea agreement

and imposed the bargained-for sentence.

¶21 Any variance from the required plea bargain procedure that does not affect the

substantial rights of the defendant must be disregarded. Section 46-12-213, MCA. We

conclude Usrey was not misled to his detriment simply because the District Court did not

tell him, using the exact words of § 46-12-210(1)(d), MCA, that he might not be allowed

to withdraw his guilty plea if the plea bargain was rejected.

¶22 Usrey also argues his plea was involuntary because the District Court did not

advise him that by pleading guilty he waived the right to submit a jury instruction on a

lesser included offense. Usrey argues that even though this Court has not held that sexual

7
assault is a lesser included offense, we should do so in this instance. Usrey goes on to

state it is impractical to commit the offense of sexual intercourse without consent upon a

6-year-old because penetration is a required element of the offense. Sections 45-2-

101(66), 45-5-503(1), MCA (1997). Therefore, a jury might find sexual contact but no

penetration, and thus he could have been convicted of sexual assault. Usrey thus argues

the District Court committed reversible error in not advising him that by pleading guilty

he waived his right to submit instructions concerning the lesser included offense of

sexual assault.

¶23 Leaving the question of whether sexual assault is a lesser included offense of

sexual intercourse without consent for another day, Usrey’s argument that he was entitled

to an instruction on sexual assault because penetration of a 6-year-old is impractical, is

nothing short of absurd. The affidavit in support of the motion for leave to file the

information graphically sets forth the required penetration element of sexual intercourse.

Further, Usrey’s statement, noted in ¶ 25, completely debunks his argument.

¶24 In the recent Swensen decision, this Court affirmed a district court’s denial of a

motion to withdraw a guilty plea even though the defendant had not been specifically

advised about possible lesser included offenses because the defendant could not

demonstrate that the factual circumstances warranted a lesser included offense

instruction. Swensen, ¶ 14 (interpreting § 46-16-607(2), MCA). Usrey has completely

failed to demonstrate he would be entitled to a lesser included offense instruction on

sexual assault. Although the facts of this case differ from Swensen, we conclude there is
8
no possibility that Usrey would be entitled to an instruction on the lesser included offense

of sexual assault. It follows that because a lesser included offense instruction would not

have been warranted under the facts, any error in the court’s failure to advise Usrey of

such a possibility was harmless.

¶25 Usrey next contends the District Court failed to establish a factual basis for his

guilty plea, as required by § 46-12-212(1), MCA. When he pled guilty, the District Court

asked Usrey what he did that makes him guilty of the offense. Usrey responded:

USREY: Um, whatever the girl said is true, I guess ah, because I mean,
yeah I did take em swimming, yes I did do that, I mean they
said I did.

COURT: When you say you did what they said you did, that doesn’t
really tell me anything, because on the record that’s not real
clear. Tell me what you did.

USREY: Um, I touched my penis to their vagina and all that. Ah they
said I licked em and all that, I did that. Um. That’s all.

COURT: One of the statements alleged that you placed your penis in
the girl’s mouth, did you do that?

USREY: Yes sir.

¶26 Usrey claims on appeal that the factual basis for his plea was not established

because the District Court did not specifically ask whether he acted purposely or

knowingly when he assaulted the child.

¶27 A district court must ascertain from admissions made by the defendant at the plea

colloquy that his acts, in a general sense, satisfy the requirements of the offense to which

he is pleading guilty. However, to establish a factual basis for a guilty plea, a district
9
court need not solicit an admission of every element of the offense. State v. Frazier,

2007 MT 40, ¶ 20, 336 Mont. 81, 153 P.3d 18. Section 46-12-212(1), MCA, requires the

court to solicit admissions from a defendant regarding his actions that constitute the

offense charged, which is exactly what the District Court did in this instance. See

Frazier, ¶ 21. We decline Usrey’s invitation to expand our law to require district courts

to specifically solicit an admission of the requisite intent elements of an offense in order

to establish a factual basis for a guilty plea.

¶28 The underlying basis of Usrey’s arguments as to why his guilty plea was

involuntary is his assertion he did not fully understand what he was doing because of his

limited mental capacity. Usrey’s expert witness testified that his deficiencies were in

nonverbal communication and he would understand the plea agreement if it was

explained to him. Before accepting his guilty plea, the District Court asked Usrey:

COURT: And before you signed it did you read through it carefully and
go over it with your attorney?

USREY: Yes, sir.

COURT: Did he answer any questions that you had?

USREY: Yes, sir.

COURT: So you, you understand this agreement?

USREY: Yes, sir.

¶29 The record before this Court contains substantial evidence supporting the District

Court’s conclusion that Usrey was mentally competent to enter a voluntary plea of guilty

10
and that he understood the proceedings. The District Court’s factual findings in this

regard are not clearly erroneous.

¶30 Issue 2: Did the District Court err in admitting the testimony of Usrey’s former

attorney?

¶31 Usrey argues the District Court erred in admitting the testimony of his former

attorney, Halvorson, because nothing in the record shows he waived the attorney-client

privilege and the State failed to obtain an order from this Court that Halvorson could

testify and reveal confidential information, as is required by In re Gillham, 216 Mont.

279, 282, 704 P.2d 1019, 1021 (1985), and modified by Marble v. State, 2007 MT 98, ¶

4, 337 Mont. 99, 169 P.3d 1148.

¶32 The District Court denied Usrey’s motion to withdraw his guilty plea after

concluding his plea was voluntary. The District Court found there was no evidence the

plea was induced by threats or promises, misrepresentation, or unfulfilled promises.

Further, the court concluded Usrey was mentally competent to plead guilty and was not

taking any medication rendering him mentally incompetent. While recognizing Usrey

had a below average intelligence, the court concluded he was not “mentally retarded.”

¶33 The District Court’s findings of fact, as well as its ultimate conclusion that Usrey’s

guilty plea was voluntary, are supported by the record without reference to Halvorson’s

testimony. Usrey himself verbally confirmed he went over the agreement with his

attorney, his attorney answered his questions, and he understood the agreement.

Disregarding Halvorson’s testimony, the record contains substantial evidence supporting
11
the ultimate conclusion that Usrey’s plea was voluntary. Thus, we need not decide

whether the District Court erred in admitting Halvorson’s testimony.

CONCLUSION

¶34 The District Court did not err in denying Usrey’s motion to withdraw his guilty

plea.

¶35 Affirmed.

/S/ JOHN WARNER

We Concur:

/S/ W. WILLIAM LEAPHART
/S/ JIM RICE
/S/ BRIAN MORRIS

Justice James C. Nelson concurs.

¶36 I concur as to Issue 1. I concur as to Issue 2, but write separately to express my

concern about the State’s argument and the trial court’s approach in this case.

¶37 I begin by noting that Usrey did not allege ineffective assistance of counsel in this

case. He objected to his counsel testifying against him at the hearing on his motion to

withdraw his guilty plea on the basis of his attorney-client privilege. The State argued

that Usrey waived this privilege by filing a motion to withdraw his guilty plea. While

this Court avoids the State’s argument and the problem of Usrey’s attorney testifying

against his client, I believe that the trial court erred, nonetheless, in ordering Halvorson to
12
testify.

¶38 Under the State’s view, if a criminal defendant moves to withdraw his guilty plea,

by implication, he waives his attorney-client privilege. The defendant’s attorney can

voluntarily testify or can be compelled to testify and provide the prosecution privileged,

confidential communications, and advice, to be used against defense counsel’s client. I

cannot agree with this approach.

¶39 The attorney-client privilege is provided for by statute as follows:

Attorney-client privilege. (1) An attorney cannot, without the
consent of his client, be examined as to any communication made by the
client to him or his advice given to the client in the course of professional
employment.

Section 26-1-803, MCA. The law is well established that “[a]bsent a voluntary waiver or

an exception, the privilege applies to all communications from the client to the attorney

and to all advice given to the client by the attorney in the course of the professional

relationship.” Palmer by Diacon v. Farmers Ins., 261 Mont. 91, 108-09, 861 P.2d 895,

906 (1993) (citing Kuiper v. Dist. Ct. of the Eighth Judicial Dist., 193 Mont. 452, 461,

632 P.2d 694, 699 (1981)); see also § 26-1-803, MCA.

¶40 A criminal defendant may waive the attorney-client privilege. However,

[w]aiver is defined as the intentional or voluntary relinquishment of a
known right or conduct which implies relinquishment of a known right.
Kuiper v. District Court (1981), 632 P.2d 694, 698, 38 St. Rep. 1288. The
burden of establishing waiver of the privilege is on the party seeking to
overcome the privilege. Miller v. Dis. Ct. City and Cty. of Denver (Colo.
1987), 737 P.2d 834, 838. Two elements must be considered when a court
reviews the waiver of an attorney-client privilege: (1) the element of a
client’s implied intention and (2) the element of fairness and consistency.
13
 See, 8 Wigmore, Evidence § 2327 at 636; State v. Balkin (1987), 48 Wash.
App. 1, 737 P.2d 1035, 1037.
An implied waiver must be supported by evidence showing that
defendant, by words or by conduct, has impliedly forsaken his privilege of
confidentiality with respect to the communication in question. Miller [],
737 P.2d at 838.

State v. Statczar, 228 Mont. 446, 452-53, 743 P.2d 606, 610-11 (1987).

¶41 The State’s argument and the trial court’s approach turn Statczar on its head. In

that case, this Court reversed the defendant’s conviction when an attorney testified

against his former client. We held, among other things, that the State presented no

evidence that Statczar intended to waive his right not to divulge his privileged

information, and that fairness and consistency coupled with the lack of evidence that

defendant intended to waive the privilege required reversal of defendant’s conviction.

Statczar, 228 Mont. at 453, 743 P.2d at 611.

¶42 Statczar set forth a two-part test on which to gauge whether the defendant had

impliedly waived his attorney-client privilege. First, there must be evidence showing that

the defendant by words or conduct impliedly renounced his privilege of confidentiality

with respect to the communication in question. And, second, the waiver must be

consistent with concerns of consistency and fairness. Statczar, 228 Mont. at 453, 743

P.2d at 610-11 (citations omitted). With regard to this second prong, we took into

consideration that Statczar had no prior contact with the judicial system; that his mental

14
capacity was questionable;1 that he was unfamiliar with courtroom procedure; and that it

was inherently unfair to require him to object to his attorney’s testimony to prevent his

statements from being used against him. Statczar, 228 Mont. at 453, 743 P.2d at 611.

¶43 Here, Usrey was not asked if he waived his privilege. Indeed, the record reflects

that it was not his intent to do so—he objected to his attorney using his privileged

communications against him. Furthermore, Usrey had an IQ of 71—even lower than

Statczar’s IQ of 75. Dr. Tim Casey, the psychologist referred to in the Opinion, ¶ 9,

testified that Usrey was functioning in the borderline range; that he had a “markedly sub-

average” ability to form concepts and deal with words; and that he had shortcomings with

his auditory memory and visual alertness. As the Court itself observes, Usrey had only

limited cognitive and academic abilities; he could only read at a second-grade level; and

to fully understand the plea agreement, someone would have to verbally communicate its

details to him. Opinion, ¶ 9.

¶44 It was the State’s burden to show waiver. Statczar, 228 Mont. at 452, 743 P.2d at

610. The State claimed only that the former public defender had a waiver signed by

Usrey—this purported written waiver was never placed in evidence, however. Moreover,

the attorney testified that the waiver was limited, providing authorization for disclosure to

Usrey’s current counsel. Notwithstanding, the court summarily overruled Usrey’s

objection. The record in this case is devoid of evidence that Usrey, by his words or

1
Statczar had an IQ of 75 and was functioning at a “borderline level.” Statczar, 228
Mont. at 451, 743 P.2d at 609.
15
conduct, impliedly intended to waive his attorney-client privilege. The evidence is

directly contrary. And, considerations of consistency and fairness are totally against any

notion of waiver. The State failed in its burden to prove either prong of the Statczar test.

Usrey did not expressly or impliedly waive his attorney-client privilege.

¶45 While the instant case is not a post-conviction-relief proceeding, we adopted a

petition/order procedure in Petition of Gillham, 216 Mont. 279, 281, 704 P.2d 1019,

1020, permitting defense counsel to testify against his client in a post-conviction-relief

proceeding where the defendant alleged ineffective assistance of counsel. We stated in

Gillham that in such a situation, “the Attorney General shall first apply to this Court for

an order preserving such responding attorney from charges of discipline or malpractice

for revealing necessary confidential information from such convicted person.” Gillham,

216 Mont. at 282, 704 P.2d at 1021. However, we also stated that this applied to

“petitions for relief of any kind . . . based in whole or in part on grounds of ineffective

assistance of counsel . . . .” Gillham, 216 Mont. at 282, 704 P.2d at 1021 (emphasis

added). This is incredibly broad language, and that, along with the fact that the attorney-

client privilege is protected by statute without such an exception, leads me to now

conclude that our decision in Gillham was a mistake.

¶46 Indeed, in a form of “function creep”2 the Gillham decision is now being cited for

2
“Function creep” refers to the “expansion of a program, system or technology into
areas for which it was not originally intended,” and the “nearly impossible to stop . . .
slippery slope toward ever broader law enforcement use” of new surveillance technology
once it is installed. Clifford S. Fishman & Ann T. McKenna, Wiretapping and
16
and being used in ways not originally contemplated. Gillham has been, for years, limited

to post conviction/ineffective assistance of counsel claims. 3 Here, however, the State

cites Gillham as authority in a motion to withdraw a guilty plea case. And, in State v.

Patrick, 2009 MT 220N, Supreme Court Cause No. DA 08-0197, the Gillham procedure

was utilized in a judge-disqualification claim. It appears that Gillham is on the slippery

slope. The State is now promoting and using Gillham as a convenient and

comprehensive tool for breaching the defendant’s attorney-client privilege when doing so

will aid it in the prosecution of the State’s case—and, unfortunately, the trial courts and

defense counsel are allowing this to happen. I cannot agree with this approach.

¶47 Gillham effectively destroys the attorney-client privilege in criminal cases.

Gillham judicially repeals § 26-1-803, MCA, in which the Legislature provided that “[a]n

attorney cannot, without the consent of his client, be examined as to any communication

made by the client to him or his advice given to the client in the course of professional

employment [emphasis added].” To the contrary, Gillham decrees that in criminal cases

an attorney can, without the consent of his client, be examined as to any communication

made to him or his advice given to the client in the course of professional employment as

long as there is any kind of claim based in whole or in part on the grounds of ineffective

Eavesdropping § 31:20 (April 2009). Function creep is precisely what is happening with
the Gillham procedure.
3
See Heath v. State, 2009 MT 7, 348 Mont. 361, 202 P.3d 118; Marble v. State, 2007
MT 98, 337 Mont. 99, 169 P.3d 1148; Watson v. State, 2004 MT 308N, 325 Mont. 403,
106 P.3d 132; Bone v. State, 284 Mont. 293, 944 P.2d 734 (1997); State v. Baker, 272
Mont. 273, 901 P.2d 54 (1995).
17
assistance of counsel. Moreover, Gillham effectively annuls Montana Rule of

Professional Conduct 1.6, regarding confidentiality, and deals the fundamental right to

counsel guaranteed under the Fifth and Sixth Amendments to the United State’s

Constitution and Article II, Section 24 of the Montana Constitution, a monstrous wound.

¶48 The fundamental purpose of the attorney-client privilege is:

to enable the attorney to provide the best possible legal advice and
encourage clients to act within the law. The privilege furthers this purpose
by freeing clients from the consequences or the apprehension of disclosing
confidential information, thus encouraging them to be open and forthright
with their attorneys.

Palmer, 261 Mont. at 106, 861 P.2d at 904 (citations omitted). Additionally, the

attorney-client privilege fosters the attorney-client relationship by ensuring that attorneys

are free to give accurate and candid advice without fear that the advice will later be used

against the client. Palmer, 261 Mont. at 107, 861 P.2d at 904-05.

¶49 The State’s argument and the trial court’s approach in this case abrogate all of

these important purposes and policies. I cannot agree that the attorney-client privilege

should be discarded so cavalierly.

¶50 With those caveats as to Issue 2, I otherwise concur in the Court’s Opinion.

/S/ JAMES C. NELSON

18