STATE OF IOWA, Plaintiff-Appellee, vs. DEBRA JOY TOBEN, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-678 / 08-0848
Filed October 7, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DEBRA JOY TOBEN,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Guthrie County, Douglas F.
Staskal, Judge.
Defendant appeals from her convictions and sentence for theft in the
second degree, fraudulent practices in the second degree, and misconduct in
office. CONVICTIONS AFFIRMED, SENTENCE VACATED, AND REMANDED
FOR RESENTENCING.
Mark C. Smith, State Appellate Defender, and David Arthur Adams,
Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney
General, and Mary Benton, County Attorney, for appellee.
Considered by Sackett, C.J., and Eisenhauer and Doyle, JJ.
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SACKETT, C.J.
Defendant, Debra Joy Toben, appeals from her convictions and sentence
for theft in the second degree, fraudulent practices in the second degree, and
misconduct in office. She contends (1) she received ineffective assistance of
counsel when her trial attorney failed to move for a judgment of acquittal because
there was insufficient evidence to support a conviction for theft, (2) there was
insufficient evidence to support her conviction for fraudulent practices, (3) the
court relied on an improper factor in setting Toben‟s sentence, and (4) the court
imposed an illegal sentence by ordering Toben to serve 365 days in the Guthrie
County jail for committing misconduct in office, to be served consecutive to the
five-year prison sentence imposed for the theft and fraudulent practice
convictions. We affirm Toben‟s convictions, but due to error in part of the court‟s
sentence, we vacate the sentence and remand for resentencing.
I. BACKGROUND. A mental health advocate “act[s] as [an] advocate
representing the interests of patients involuntarily hospitalized by the court” for
mental illness under Iowa Code chapter 229. Iowa Code § 229.19 (2005). The
advocate is to communicate with and visit each patient and medical personnel
treating the patient, review each patient‟s medical records, and submit quarterly
reports to the court detailing the advocate‟s services to the patient. Id. Debra
Toben was hired as the mental health advocate for Guthrie County in November
2005. She was paid sixteen dollars per hour and provided a cell phone to make
calls to the patients she was assigned. She was to submit monthly claim forms
detailing the time she spent attending to each client, the services she performed
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during that time, and any mileage reimbursement required. After she submitted
the claim forms to the county auditor, a central coordinator, Ted Ely, would
review the claim form and if the compensation requested was reasonable, he
would forward it on to the county‟s board of supervisors for approval. If the board
approved the claim, the district court would issue an order for payment.
On March 6, 2007, Ely was talking with a client‟s mother about her son‟s
mental condition and progress.
He inquired whether her son, Jason, was
receiving visits from a mental health advocate and specifically from Debra Toben.
The client‟s mother stated she had never met or spoken with Toben and neither
had her son. Ely grew concerned, knowing that Toben had submitted claims to
be compensated for services provided to Jason. He called another client, Karen,
who also stated she had never met or spoken with Toben.
Ely contacted Toben with his concerns. Toben assured Ely that she had
met with both clients. She stated that Jason preferred to meet without his mother
present and provided Ely with an address and phone number that she used to
contact Jason. She stated that Karen must have been confused. Ely attempted
to confirm Toben‟s explanation with the clients. Jason stated he had never met
or spoke with Toben. In researching the address and phone number Toben
provided, Ely discovered the address did not exist and the phone number did not
belong to Jason. Ely also knew that Jason was very fearful of meeting anyone
without his mother present. Ely then called Karen‟s husband to ask whether
Karen had received services from Toben. Karen‟s husband confirmed that Karen
had never received visits or calls from Toben. Ely then called Toben and stated
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she should have no further contact with any clients and she would no longer be
compensated for her services.
Ely found additional discrepancies after cross-referencing the cell phone
records for the phone assigned to Toben with the claim forms Toben submitted.
On March 19, 2007, Ely contacted the county sheriff and gave the chief deputy a
list of Toben‟s clients. The deputy met with each client, showed each a picture of
Toben, and had them complete a questionnaire about whether they had met or
spoken with Toben and if they had, an estimation of how many times. Through
the interviews and further investigation, the deputy discovered eight out of
Toben‟s twenty-one clients claimed to either never have met or spoken with
Toben, or had only spoken with her a couple of times. One client Toben claimed
she had visited for several months actually died before Toben was hired as the
mental health advocate.
Toben‟s claim forms indicated she had repeatedly
provided services to each of these clients.
At trial, some clients and caretakers of clients testified that after they were
approached by Ely or the investigator, they were later contacted by Toben. They
testified that Toben tried to convince them to contact the prosecutor‟s office and
tell the prosecutor that Toben and the clients had actually met. Toben allegedly
told one client that people in town were trying to get the client committed to the
hospital and if the client would call the prosecutor, Toben could help the client.
She also allegedly told that client‟s boyfriend if he called the county attorney, she
would owe him a twelve pack of beer. Toben also testified and denied that she
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submitted false claim forms and denied pressuring any clients or caretakers of
clients to call the prosecutor.
The State charged Toben with theft in the second degree, fraudulent
practices in the second degree, and misconduct in office. Following a jury trial,
Toben was convicted on all counts. The district court sentenced Toben to serve
five years for the theft conviction, five years for the fraudulent practices
conviction, and 365 days for the misconduct in office conviction.
The court
ordered that the sentences for theft and fraudulent practices run concurrently,
and the sentence for misconduct in office be served consecutive to the theft and
fraudulent practices sentences. It further specified that the 365-day sentence for
misconduct in office be served in the Guthrie County jail. Toben now challenges
her convictions and sentences on the four grounds we consider below.
II. INEFFECTIVE ASSISTANCE OF COUNSEL. Toben first asserts her
attorney rendered ineffective assistance by failing to move for a judgment of
acquittal when there was insufficient evidence to support a conviction for theft.
We review ineffective assistance of counsel claims de novo. State v. Bearse,
748 N.W.2d 211, 214 (Iowa 2008).
We generally preserve these claims for
postconviction relief. State v. Parker, 747 N.W.2d 196, 203 (Iowa 2008). We will
address the issue on direct appeal only if the development of an additional
factual record is unnecessary and the claim can be decided as a matter of law.
State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009).
sufficient to address Toben‟s claim.
We find the record is
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To establish ineffective assistance of counsel, Toben must prove both (1)
the attorney failed to perform an essential duty, and (2) the defendant was
prejudiced thereby. State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008) (citing
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d
674, 693 (1984)). We may dispose of a claim if it fails either prong. State v.
Polly, 657 N.W.2d 462, 465 (Iowa 2003). In proving the first requirement, the
defendant must show that counsel‟s performance was not within the normal
range of competency. State v. Dudley, 766 N.W.2d 606, 620 (Iowa 2009). Trial
counsel is not incompetent in failing to pursue a meritless issue.
State v.
Hoskins, 586 N.W.2d 707, 709 (Iowa 1998). If a motion for judgment of acquittal
is meritless, trial counsel has no duty to make such a motion. See State v.
Milom, 744 N.W.2d 117, 122 (Iowa Ct. App. 2007) (finding counsel not ineffective
for failing to challenge the sufficiency of the evidence when the challenge had no
merit). Therefore, if there was sufficient evidence submitted at trial to support a
finding on each element of theft, Toben‟s attorney had no duty to move for a
judgment of acquittal.
Toben argues she was charged with the “theft by taking” method of
committing theft under Iowa Code section 714.1(1). She contends there was no
evidence presented to support a finding of the “theft by taking” alternative. She
claims the jury convicted her because it was instructed on “theft by deception.”
She reasons that the jury should not have been instructed on “theft by deception”
when she was actually charged with “theft by taking.” Toben asserts, pursuant to
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State v. Pexa, 574 N.W.2d 344, 347 (Iowa 1998), that the State must prove the
offense was committed in the method charged.
Toben‟s claim fails because it is based on a mistaken reading of the
record. Toben was charged with both “theft by taking” and “theft by deception”
alternatives. The trial information accuses Toben “[o]f THEFT IN THE SECOND
DEGREE, in violation of Sections 714.1(1) and/or 714.1(3) . . . of the Iowa
Criminal Code.” Section 714.1(1) describes the “theft by taking” alternative 1 and
section 714.1(3) describes the “theft by deception” alternative.2 Since Toben
was charged with the “theft by deception” theory, the State permissibly presented
its evidence on that theory and the jury was correctly instructed on the elements
of “theft by deception.” Toben‟s trial counsel had no duty to move for a judgment
of acquittal based on insufficient evidence of “theft by taking” when such motion
would have been meritless.
III. FRAUDULENT PRACTICES. At the close of trial, Toben‟s counsel
moved for a directed verdict, arguing there was insufficient evidence to submit
the charge of fraudulent practices to the jury. The district court overruled this
motion and Toben contends this was error.
We review challenges to the sufficiency of the evidence to support a guilty
verdict for correction of errors at law. State v. Fintel, 689 N.W.2d 95, 99 (Iowa
1
Iowa Code section 714.1(1) provides that “[a] person commits theft when the
person . . . [t]akes possession or control of the property of another, or property in the
possession of another, with the intent to deprive the other thereof.”
2
Iowa Code section 714.1(3) provides, in relevant part, that a person commits theft
when the person, “[o]btains the labor or services of another, or a transfer of possession,
control, or ownership of the property of another, or the beneficial use of property of
another, by deception.”
8
2004); State v. Heard, 636 N.W.2d 227, 229 (Iowa 2001). We will uphold the
finding of guilt if it is supported by substantial evidence. State v. Pace, 602
N.W.2d 764, 768 (Iowa 1999). “Evidence is substantial if it could convince a
rational trier of fact the defendant is guilty of the crime charged beyond a
reasonable doubt.” State v. Jacobs, 607 N.W.2d 679, 682 (Iowa 2000). In our
review we consider all the evidence in the record, both that supporting and
detracting from the verdict.
State v. Hagedorn, 679 N.W.2d 666, 669 (Iowa
2004). In doing so however, we view the evidence in a light most favorable to
the State, including the legitimate inferences and presumptions that may fairly be
deduced from the record. State v. Keeton, 710 N.W.2d 531, 532 (Iowa 2006);
State v. Williams, 695 N.W.2d 23, 27 (Iowa 2005).
The State charged Toben with committing fraudulent practices in violation
of Iowa Code section 714.8(3). This section provides that a person is guilty of a
fraudulent practice if the person
[k]nowingly executes or tenders a false certification under penalty
of perjury, false affidavit, or false certificate, if the certification,
affidavit, or certificate is required by law or given in support of a
claim for compensation, indemnification, restitution, or other
payment.
Iowa Code § 714.8(3). The State argued that when Toben submitted claim forms
requesting compensation for servicing clients that she actually had not provided
services to, she knowingly executed and tendered a false certificate in support of
a claim for compensation. Toben argues the State provided insufficient evidence
to support the conviction for fraudulent practices because the claim forms she
submitted for compensation were not “certificates” under the statute. She argues
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the claim forms are not certificates because the forms “clearly lack any extra
language to indicate that [she] intended th[e] statement to have this heightened
sense of accuracy or trustworthiness necessary to qualify as a „certificate.‟”
The parties agree that “certificate” is not defined in the statute. Toben
argues the claim forms were not certificates because they were not notarized and
did not contain a formal acknowledgment. We do not find this is required by the
statute or by the case law. “In the absence of a legislative definition, words in a
statute are given their ordinary meaning.” State v. Muhlenbruch, 728 N.W.2d
212, 214 (Iowa 2007). A “certificate” is defined as “a document containing a
certified and usu[ally] official statement: a signed, written, or printed testimony to
the truth of something.”
Webster‟s Third New International Dictionary 367
(unabr. ed. 2002). The legal definition is, “[a] document in which a fact is formally
attested.” Black‟s Law Dictionary 239 (8th ed. 2004). In prior case law, our
Supreme Court has defined “certify” as “[t]o authenticate or vouch for a thing in
writing, [t]o attest as being true or as represented,” and “to testify to a thing in
writing.” State v. Walker, 574 N.W.2d 280, 287 (Iowa 1998).
Viewing Toben‟s submission of the claim forms in light of these definitions
and prior interpretations of the term, we find there is substantial evidence to
support a finding that the claim forms were certificates for purposes of the
fraudulent practices statute. The claim forms have the characteristics of a formal
court document. The heading specifies that the document is directed to the
district court of the Fifth Judicial District of Iowa and that it is a claim for
reimbursement. It affirmatively states, “AS MENTAL HEALTH ADVOCATE FOR
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GUTHRIE COUNTY, I EXPENDED THE FOLLOWING TIMES AND INCURRED
THE FOLLOWING EXPENSES, THE ITEMIZED DETAILS [OF] WHICH ARE
ATTACHED HERETO.” After providing space where Toben listed the time and
expenses,
the
form
COMPENSATION,
states,
INCLUDING
“I
REQUEST
THAT
REIMBURSEMENT
I
BE
FOR
ALLOWED
EXPENSES
INCURRED, IN THE AMOUNT OF:.” Toben placed her signature below this
request.
Thereafter the form provided a statement allowing the board of
supervisors to waive a hearing on the claim for reimbursement, and then listed
the heading ORDER whereby the county was directed to pay Toben if a judge
had signed the order in the space provided. The final section of the form is
labeled “CERTIFICATE.” This section provides space for the date and signature
of the clerk of court and states, “The above is a true copy of the claim and Order
as appears of record in my office and is hereby certified to the County Auditor for
payment.”
Toben knew the claim forms were submitted to the court and would be
signed as a “certificate” by the clerk of court. In completing the form, Toben
represented that she truthfully expended time and expenses servicing clients as
a mental health advocate. She submitted the forms, knowing the coordinator,
board of supervisors, district court, and clerk of court would rely on the
truthfulness of her statements in approving her claim for reimbursement. Toben
was aware that the forms and appended reports served as the court‟s basis for
issuing an order to the county to compensate Toben. Her monthly forms were
more than time sheets documenting her work, but also served as evidence
11
supporting each court order giving the county authority to pay Toben. Tendering
the false forms was knowingly presenting false evidence to the court.
See
Jacobs, 607 N.W.2d at 688 (stating that when defendant falsely reported
financial transactions to the court in probate reports and other court documents
to conceal defendant‟s theft, he committed fraudulent practices). We conclude
there was substantial evidence that Toben was vouching for the truth of her
statements regarding time and expenses when completing the claim forms and
were “certificates” under the fraudulent practices statute.3
IV. RELYING ON IMPROPER FACTOR IN SENTENCING. Toben next
claims the court relied on improper factors in determining her sentence. We
review sentences imposed in criminal matters for correction of errors at law.
State v. Witham, 583 N.W.2d 677, 678 (Iowa 1998).
There is a strong
presumption in favor of a district court‟s decision to impose a particular sentence
and it will only be overturned when the defendant shows an abuse of discretion
3
We also note the claim forms appear to be required by statute. Iowa Code section
229.19(6) explains that the advocate‟s duties include,
To file with the court quarterly reports, and additional reports as
the advocate feels necessary or as required by the court, in a form
prescribed by the court. The reports shall state what actions the
advocate has taken with respect to each patient and the amount of time
spent.
....
The court or, if the advocate is appointed by the county board of
supervisors, the board shall prescribe reasonable compensation for the
services of the advocate. The compensation shall be based upon the
reports filed by the advocate with the court.
The advocate‟s
compensation shall be paid by the county in which the court is located,
either on order of the court or, if the advocate is appointed by the county
board of supervisors, on the direction of the board.
Toben‟s conduct therefore might be viewed as not only executing and tendering a false
certificate given in support of a claim for compensation, but also as tendering a false
certificate required by law under Iowa Code section 714.8(3).
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or a defect in procedure, such as the court‟s consideration of impermissible
factors.
State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002); State v.
Grandberry, 619 N.W.2d 399, 401 (Iowa 2000); State v. Loyd, 530 N.W.2d 708,
713 (Iowa 1995). If the court considers an improper sentencing factor, we will
remand for the defendant to be resentenced. State v. Carrillo, 597 N.W.2d 497,
501 (Iowa 1999). We do not speculate about how much weight the court gave to
the improper factor as there is no way to determine what sentence would have
been ordered without consideration of the improper factor. Id.
Toben argues the court impermissibly based the sentence on Toben‟s
decision to stand trial and defense counsel‟s trial strategy to test the credibility of
witnesses. Toben believes the court‟s reliance on these factors is evidenced by
the following comments made by the court during sentencing:
So not only did you cheat the county out of money and deny
the people who you were obligated to help the help they needed,
you then set out on a course of action of using them to evade your
only responsibility as witnessed by your pleading guilty of
tampering with witnesses.
You approached witnesses, trying to get them to change
their testimony, trying to get them to lie and you came into court
and insinuated these people were liars or unreliable because of
their mental health illness, that you couldn‟t believe them.
That is a level of not only uncaring, but using and
manipulating these people that you were supposed to help that I
am not willing to overlook.
....
I know that you have no prior criminal history. That‟s a fact
in this decision, no question about it, and I considered that as well
as everything else as I mentioned at the outset. But I‟m unwilling to
overlook the seriousness of this behavior, a violation of public trust,
denial of help to the people you were obligated to help. And worse
of all, your then setting out to make them—manipulate them in a
way as to seem that they were the ones responsible for your
criminal behavior.
13
A district court is to consider sentencing options “[a]fter receiving and
examining all pertinent information, including the presentence investigation report
and victim impact statements . . . .”
Iowa Code § 901.5.
It is required to
determine which sentencing options are authorized for the offense and “which of
them or which combination of them, in the discretion of the court, will provide
maximum opportunity for the rehabilitation of the defendant, and for the
protection of the community from further offenses by the defendant and others.”
Id. The court must state on the record its reasons for selecting a particular
sentence. Iowa R. Crim. P. 2.23(3)(d). A defendant‟s character, propensity to
reoffend, and chances for reform are pertinent factors in determining an
appropriate sentence. State v. Knight, 701 N.W.2d 83, 86-87 (Iowa 2005). The
nature of the offense and the attending circumstances may also be considered in
sentencing a defendant. State v. Millsap, 704 N.W.2d 426, 435 (Iowa 2005).
Specifically, “[a] defendant‟s lack of remorse is highly pertinent to evaluating his
[or her] need for rehabilitation and his [or her] likelihood of reoffending.” Knight,
701 N.W.2d at 88. Furthermore, it is not error for the court to express concern
about how a defendant projects blame upon others if that concern is reasonable
and tenable. See State v. Beets, 528 N.W.2d 521, 524 (Iowa 1995). A court can
also evaluate the defendant‟s truth and veracity in assessing the defendant‟s
character and potential for rehabilitation during the sentencing process. State v.
Bragg, 388 N.W.2d 187, 192 (Iowa Ct. App. 1986).
The fact a defendant has exercised her right to require the State to prove
her guilt and her right to raise defenses is an impermissible factor and should not
14
be considered by the court in determining a sentence. State v. Nichols, 247
N.W.2d 249, 255 (Iowa 1976).
The “„trial court must carefully avoid any
suggestions in its comments at the sentencing stage that it was taking into
account the fact defendant had not pleaded guilty but had put the prosecution to
its proof.‟” Knight, 710 N.W.2d at 87 (quoting Nichols, 247 N.W.2d at 256).
Therefore, if a court considers a defendant‟s lack of remorse as a factor, it should
do so by relying on facts other than the defendant‟s choice to not plead guilty. Id.
at 88. It may consider the defendant‟s lack of remorse shown by statements
made by the defendant pre-trial, at trial, or post-trial, or by other competent
evidence admitted at the sentencing hearing. Id. at 87-88.
We find the court did not rely on Toben‟s decision to stand trial and test
the credibility of witnesses in issuing the sentence. The court‟s comments overall
show its sentencing decision was based on the nature of Toben‟s offense, the
attending circumstances of the crime, and her character.
The court did not
reference Toben‟s decision to plead not guilty or her attorney‟s strategy of
challenging witness credibility. In making its determination, the court was relying
on Toben‟s attempt to conceal the crime afterward by encouraging her clients to
lie and fabricate stories.
This conduct was presented at trial through the
testimony of Toben‟s clients. Toben admitted at trial to meeting with the clients
after being told to have no further contact with them. The court was free to
consider this conduct in composing the sentence because it pertains to the
nature of the crime, Toben‟s character, and her likelihood for rehabilitation. See
Bragg, 388 N.W.2d at 191 (finding that the court‟s opinion that defendant
15
concocted a lie to cover his tracks after committing an assault was a proper
sentencing consideration since it was relevant to the crime, defendant‟s
character, and defendant‟s potential for reform). We hold the court did not rely
on an improper factor in issuing Toben‟s sentence.
V. ILLEGAL SENTENCE. Toben‟s final contention is that the court had
no authority to order Toben to serve a 365-day jail sentence consecutive to a
five-year prison sentence.
Toben contends that although the court had the
authority to sentence her for these individual terms of incarceration, the
sentencing scheme requires the court to commit her to the department of
corrections, and it could not designate that part of her sentence had to be served
in the county jail.
A sentence not authorized by law is void.
State v. Stephenson, 608
N.W.2d 778, 784 (Iowa 2000). We review a court‟s application of the sentencing
statutes for the correction of errors at law. State v. Beach, 630 N.W.2d 598, 600
(Iowa 2001). The court sentenced Toben to five years in prison for her theft
conviction, five years in prison for her fraudulent practices conviction, and 365
days in the Guthrie County jail for the conviction of misconduct in office.
It
ordered that the five-year sentences for theft and fraudulent practices run
concurrently and the misconduct in office sentence run consecutive to the theft
and fraudulent practices sentences.
Iowa Code section 903.4 governs where persons must be confined to
serve out their sentences. Generally, if the confinement is to be one year or less,
the county provides the incarceration facility, and if the confinement is over one
16
year, the person is committed to the custody of the state department of
corrections.
Iowa Code § 903.4; see also id. § 901.7; State v. Morris, 416
N.W.2d 688, 689 (Iowa 1987). When consecutive sentences are ordered, the
individual terms are construed as one continuous term of imprisonment. Iowa
Code § 901.8; State v. Kapell, 510 N.W.2d 878, 880 (Iowa 1994). “[P]ursuant to
section 901.8, consecutive sentences are to be viewed as one continuous term
of imprisonment for purposes of designating the proper place of confinement
under section 903.4.” State v. Patterson, 586 N.W.2d 83, 84 (Iowa 1998).
Toben‟s sentence, viewed as one continuous term, exceeds one year.
The district court was required to commit Toben to the director of the department
of corrections and could not designate that 365 days of the sentence be served
in the county jail. We therefore vacate the court‟s sentence. The State concedes
this part of the sentence is void but argues we should sever the invalid portion
rather than remand to the district court for resentencing. We acknowledge this
alternative but opt to remand to the district court for resentencing.
VI. CONCLUSION. We affirm Toben‟s convictions for theft in the second
degree, fraudulent practices in the second degree, and misconduct in office.
Toben did not receive ineffective assistance of counsel because her counsel had
no duty to move for a judgment of acquittal on the theft charge as such motion
would have been denied. There was sufficient evidence to support the jury‟s
finding that Toben submitted a certificate to satisfy the elements of the fraudulent
practices charge. The court did not rely on an improper factor in sentencing
17
Toben; however, it did lack authority to require Toben to serve 365 days of the
sentence in Guthrie County jail.
CONVICTIONS AFFIRMED, SENTENCE VACATED, AND REMANDED
FOR RESENTENCING.
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