PEOPLE OF MI V CHARLES DUNBAR
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
October 26, 2004
9:05 a.m.
Plaintiff-Appellee,
v
No. 249623
Muskegon Circuit Court
LC No. 99-043156-FH
CHARLES DUNBAR,
Defendant-Appellant.
Official Reported Version
Before: Neff, P.J., and Smolenski and Schuette, JJ.
SMOLENSKI, J.
In this case, the police received information from a confidential informant that defendant
was in possession of a quantity of cocaine. Later that same day, when defendant was stopped on
the street by police officers, he had suspected cocaine and marijuana on his person. Following a
bench trial, defendant was convicted of possession with intent to deliver less than fifty grams of
cocaine, MCL 333.7401(2)(a)(iv), and possession with intent to deliver less than five kilograms
of marijuana, MCL 333.7401(2)(d)(iii). He was sentenced as an habitual offender, MCL 769.10,
to consecutive sentences of nine months to twenty-two years of imprisonment and three months
to six years of imprisonment, respectively. Defendant appeals as of right, challenging the
legality of his arrest and the procedures employed by the trial court in requiring him to repay the
county for the cost of his legal fees.1 We affirm defendant's convictions and sentences, but
vacate that portion of the judgment requiring reimbursement, and remand for reconsideration.
1
We note that this is not the first time this case has been through the appellate process. During
defendant's first preliminary examination, the prosecutor moved to dismiss the case in light of a
judicial ruling that would have required the arresting officer to provide certain information that
could have revealed the confidential informant's identity. After refiling the charges, a second
preliminary examination was held in which the officer was not required to divulge the
information, and defendant was subsequently bound over for trial. The circuit court granted
defendant's motion to quash, finding that his due process rights were violated. This Court
affirmed in an unpublished opinion per curiam, issued May 9, 2000 (Docket No. 221978). Our
Supreme Court reversed, holding that there was no evidence that the prosecutor was "judgeshopping" and no reason to doubt the veracity of the prosecutor's reason for requesting dismissal,
protection of the confidential informant's identity. The case was remanded to the trial court for
(continued…)
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I. Motion to Suppress
Defendant argues that the trial court erred in denying his motion to suppress evidence
seized at the time of his arrest on the ground that defendant's arrest was not supported by
probable cause. The prosecution argued that the evidence was admissible because defendant had
abandoned the drugs. The trial court rejected this argument because case law states that drugs
abandoned after an illegal seizure must be suppressed,2 but nonetheless denied defendant's
motion because it found that the stop and subsequent arrest of defendant without a warrant was
proper. A trial court's findings of fact in a suppression hearing are reviewed for clear error; but
its ultimate decision on a motion to suppress is reviewed de novo. People v Beuschlein, 245
Mich App 744, 748; 630 NW2d 921 (2001).
At the evidentiary hearing on defendant's motion to suppress, Sergeant Tim Lewkowski,
the officer in charge, testified as follows.3 On January 27, 1999, Sergeant Lewkowski received
information from a reliable confidential informant that defendant was in possession of cocaine.
He deemed the informant to be reliable because the informant "had made purchases prior to this
occasion at which time [sic, times] we obtained narcotics." Sergeant Lewkowski had been
personally involved in at least three previous drug buys made by the informant.
On the basis of the confidential informant's information, Sergeant Lewkowski and other
officers from the West Michigan Enforcement Team conducted surveillance in the area where
the informant had stated that defendant would be, near the intersection of Sanford and Columbia
in Muskegon Heights.4 Sergeant Lewkowski observed the informant meeting with defendant in
front of a cellular phone store in the area. He testified that the pair went behind the store for a
short time, and when they emerged together in front of the store again, each went his separate
way.
When defendant started walking down the street, Sergeant Lewkowski drove his vehicle
to a spot in front of defendant to block his path, and another officer, Sergeant James
Christianson, placed the vehicle he was driving behind defendant. Sergeant Lewkowski was in
plain clothes, but had on a police undercover jacket that displayed a badge and the police logo.
(…continued)
further proceedings, including a decision on defendant's motion to suppress, which is at issue in
this appeal. People v Dunbar, 463 Mich 606, 617-618; 625 NW2d 1 (2001).
2
The court relied on People v Shabaz, 424 Mich 42, 66; 378 NW2d 471 (1985).
3
Because the trial court's decision on the motion to suppress was based on the evidence
presented at the hearing, we limit our discussion of the facts to those presented at the hearing.
4
It is unclear how and when that day the confidential informant contacted Sergeant Lewkowski.
His testimony concerning the circumstances was confusing and, at times, admittedly
contradictory. It appears that a clearer picture could not be presented for fear of revealing the
confidential informant's identity because any specifics would enable defendant to determine the
informant's identity. Therefore, the trial court curtailed the defense's efforts to force Sergeant
Lewkowski to testify more specifically and also limited its own clarification efforts. The judge
at defendant's first preliminary examination set no such boundaries, which set in motion the
events that led to the prior appeal in this case. Dunbar, supra at 463 Mich 606.
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After Sergeant Lewkowski got out of his car, he announced that he was a police officer and
asked defendant to remove his hands from his pockets as a safety precaution. Sergeant
Lewkowski testified that he did not have his gun drawn and did not threaten defendant. When
defendant removed only his right hand, Sergeant Lewkowski asked defendant to also remove his
left hand. Defendant complied, holding his hands about shoulder height, and Sergeant
Lewkowski observed a small clear plastic bag in defendant's left hand. The bag appeared to
contain multiple packages within it. As Sergeant Lewkowski approached defendant, he saw that
the bag contained green and white substances. Sergeant Christainson approached defendant
from behind, and, as he made contact with defendant's left arm, defendant dropped two bags.5
Defendant was subsequently arrested.
Defendant testified at the suppression hearing that he was alone before and after he
visited the cell phone store until he was confronted by Sergeant Lewkowski. According to
defendant, Sergeant Lewkowski got out of his vehicle with his gun drawn and identified himself
as a police officer. Defendant's testimony about what subsequently occurred was the same as
Sergeant Lewkowski's, except defendant denied he had two bags in his left hand. Defendant
admitted that he had one plastic bag containing marijuana, but contended that Officer
Christianson found the bag of cocaine while he was searching the area, after he had already
placed defendant in handcuffs. Defendant maintained that the bag of cocaine was found several
feet away from him near the street curb and denied ownership of the cocaine.
A. Initial Stop
Defendant asserts that the police did not have probable cause to arrest him because the
prosecution presented no evidence to establish that the confidential informant's tip was credible
and stemmed from personal knowledge, other than the officer's testimony that he believed the
informant was reliable. Therefore, defendant argues that the narcotics subsequently recovered
are inadmissible because the arrest was illegal.
Both the United States Constitution and the Michigan Constitution guarantee the right to
be free from unreasonable searches and seizures. US Const, Am IV; Const 1963, art 1, § 11.
"Generally, seizures are reasonable for purposes of the Fourth Amendment only if based on
probable cause."6 People v Lewis, 251 Mich App 58, 69; 649 NW2d 792 (2002). However, an
exception to the probable cause requirement exists and applies when the police have reasonable
and articulable suspicion that crime is afoot. People v Green, 260 Mich App 392, 396; 677
5
Apparently, Sergeant Lewkowski noticed, after defendant dropped the bag, that defendant
actually had been holding two clear plastic bags, one containing marijuana and the other
containing rock cocaine.
6
There is no dispute that defendant was "seized" within the meaning of the Fourth Amendment.
Testimony indicated that defendant's path was blocked by officers in front of and behind him.
People v Shankle, 227 Mich App 690, 693; 577 NW2d 471 (1998) ("A 'seizure' occurs within the
meaning of the Fourth Amendment if, in view of all the circumstances surrounding an encounter
with the police, a reasonable person would have believed that the person was not free to leave.")
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NW2d 363 (2004); Lewis, supra. A person may be detained on reasonable suspicion in an
investigatory stop as long as the police are diligently pursuing a means of investigation that is
likely to confirm or dispel their suspicions quickly. People v Chambers, 195 Mich App 118,
123; 489 NW2d 168 (1992). Here, the police detained defendant in order to ascertain whether he
had just been involved in a drug transaction. There was no evidence presented to indicate that
defendant was under arrest.7 The officer who made the initial contact with defendant identified
himself and, for the officers' safety before questioning, asked defendant to remove his hands
from his coat pockets. When defendant complied, he held what appeared to be a clear plastic
bag in his left hand, which bag the officer suspected contained narcotics. Thus, the facts indicate
that defendant was detained pursuant to an investigatory stop.8
The key initial issue, then, is whether the police had sufficient information to justify the
forcible stop of defendant.
Police officers may make a valid investigatory stop if they possess
"reasonable suspicion" that crime is afoot. Reasonable suspicion entails
something more than an inchoate or unparticularized suspicion or "hunch," but
less than the level of suspicion required for probable cause.
A valid investigatory stop must be justified at its inception and must be
reasonably related in scope to the circumstances that justified interference by the
police with a person's security. Justification must be based on an objective
manifestation that the person stopped was or was about to be engaged in criminal
activity as judged by those versed in the field of law enforcement when viewed
under the totality of the circumstances. The detaining officer must have had a
particularized and objective basis for the suspicion of criminal activity. [People v
Champion, 452 Mich 92, 98-99; 549 NW2d 849 (1996) (citations omitted).]
Accordingly, we must consider all the facts known to the officers at the time they approached
defendant to determine whether these facts constituted reasonable suspicion that defendant was
involved in an illegal activity.
Defendant contends that the evidence presented at the evidentiary hearing did not
establish that the police had a particularized basis for their suspicion that defendant had drugs on
his person or otherwise was involved in an illegal activity. Defendant argues that the
information provided by the confidential informant, combined with no independent investigation
7
Indeed, the officer's and defendant's testimony regarding the circumstances surrounding the
stop differ only in that defendant stated that the officer drew his gun as he approached defendant
and announced he was a police officer. However, an officer drawing his weapon or even
handcuffing a defendant does not transform a stop into an arrest. Green, supra at 397-398.
8
Accordingly, defendant's reliance on case law regarding the indicia of reliability necessary to
justify a search warrant or an arrest based on a confidential informant's information, i.e., the
probable-cause standard, is misplaced.
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by the police, amounted to no more than a "hunch" that defendant was involved in a crime. We
disagree.
Even when an investigatory stop is based, at least in part, on information from an
informant, the critical inquiry remains whether the officer's suspicion was reasonable when
considered in light of the totality of circumstances. People v Tooks, 403 Mich 568, 575-576; 271
NW2d 503 (1978).9 Part of this reasonableness inquiry includes considering the reliability of the
informant's information. In Id. at 577, our Supreme Court set forth three factors that a court
should examine when making this determination: "(1) the reliability of the particular informant,
(2) the nature of the particular information given to the police, and (3) the reasonability of the
suspicion in light of the above factors."10
In delineating these factors, the Tooks Court relied on the United States Supreme Court's
decisions in Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968), which announced the
"reasonable suspicion" test for determining the validity of a stop, and Adams v Williams, 407 US
143; 92 S Ct 1921; 32 L Ed 2d 612 (1972), which extended the Terry stop rationale to situations
in which the stop was prompted by an unverified tip from a known informant. Tooks, supra at
575-576. In Adams, the Court held that the forcible stop of the defendant was justified, even
though the tip that lead to the stop was unverified, because the informant was known to the
police officer and had provided information in the past. Adams, supra at 146. Comparing the
requisite levels of reliability for a stop and an arrest, Adams stated:
Thus, while the Court's decisions indicate that this informant's unverified
tip may have been insufficient for a narcotics arrest or search warrant, the
information carried enough indicia of reliability to justify the officer's forcible
stop of [the defendant].
In reaching this conclusion, we reject respondent's argument that
reasonable cause for a stop and frisk can only be based on the officer's personal
observation, rather than on information supplied by another person. Informants'
tips, like all other clues and evidence coming to a policeman on the scene, may
vary greatly in their value and reliability. One simple rule will not cover every
situation. Some tips, completely lacking in indicia of reliability, would either
warrant no police response or require further investigation before a forcible stop
of a suspect would be authorized. But in some situations—for example, when the
victim of a street crime seeks immediate police aid and gives a description of his
assailant, or when a credible informant warns of a specific impending crime—the
9
This point was more recently reaffirmed in People v Faucett, 442 Mich 153, 169-170; 499
NW2d 764 (1993).
10
Michigan case law continues to utilize these factors in determining whether an informant's tip
constitutes sufficient reasonable suspicion to justify an investigatory stop. See Faucett, supra at
163 n 11.
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subtleties of the hearsay rule should not thwart an appropriate police response.
[Id. at 147 (citations omitted).]
In this case, Sergeant Lewkowski testified that the confidential informant was known to
him and previously had been involved with at least three successful drug buys. Although details
of the previous buys were not revealed, Sergeant Lewkowski's belief that the informant was
reliable was a factor for the court to consider. Here, we defer to the court's assessment of an
officer's credibility. People v Farrow, 461 Mich 202, 209; 600 NW2d 634 (1999). On the basis
of the informant's information that defendant had cocaine, the police went to the area where the
informant stated defendant would be and observed defendant meet with the informant. Sergeant
Lewkowski was familiar with defendant and recognized him as the person the informant stated
had cocaine. The informant and defendant then went behind a building for a short time,
reappeared, and went their separate ways. The only evidence presented to the contrary was
defendant's testimony that he did not meet with anyone after leaving the cellular phone store.
But, again, we do not interfere with the trial court's credibility determination. Id. On the basis
of these facts, we find that the trial court did not clearly err in concluding that there was
sufficient indicia of reliability to provide the police with reasonable suspicion that defendant had
just been involved in criminal activity, which justified the forcible stop.
B. Arrest Without a Warrant
The next question becomes whether defendant's subsequent arrest was lawful. The police
may arrest an individual without a warrant if a felony has been committed and there exists
probable cause to believe that the defendant committed the felony or if the defendant committed
a misdemeanor in the officer's presence. MCL 764.15. Probable cause is found when the facts
and circumstances within an officer's knowledge are sufficient to warrant a reasonable person to
believe that an offense had been or is being committed. Champion, supra at 115. Defendant
was holding two clear plastic bags in his left hand when he removed it from his pocket, which
bags the officer suspected contained drugs because of the multiple individual packages within
them. As he approached defendant, the officer noticed that the bags contained a green and a
white substance that, on the basis of his experience, he believed to be marijuana and cocaine.
Given these facts, the trial court did not clearly err in finding that probable cause existed to arrest
defendant on the basis of the officer's reasonable belief that defendant was in possession of
narcotics. Accordingly, the trial court properly denied defendant's motion to suppress.
II. Court-Appointed Attorney Costs
Defendant also argues that the trial court erred in requiring him to financially contribute
to the cost of his court-appointed attorney without first assessing his ability to pay. Because
defendant failed to object below, we review only for plain error affecting defendant's substantial
rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).
Both parties agree with People v Nowicki, 213 Mich App 383, 388; 539 NW2d 590
(1995), that a defendant may be required to reimburse the county for the cost of his courtappointed attorney. But Nowicki only addressed whether the court could order reimbursement
and did not address "the effect of a defendant's inability to pay on an order to reimburse the
county for costs of legal representation" because the defendant in that case did not claim an
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inability to pay. Id. at 386 n 1. In resolving the issue before it, the Nowicki Court relied on
Davis v Oakland Circuit Judge, 383 Mich 717; 178 NW2d 920 (1970). However, Davis also
does not provide us with any guidance regarding a defendant's claim of indigency in the face of a
reimbursement order for court-appointed attorney costs. Davis simply held that the trial court
has discretionary power to require previously unknown assets of a defendant to be applied
toward defrayment of the public cost of providing an indigent with a court-appointed attorney.
Id. at 720.
Defendant argues that federal constitutional law has superceded Davis and Nowicki, but
fails to recognize that Davis and Nowicki do not directly speak about the issue at bar and,
therefore, are unaffected by the law defendant cites.11 Defendant's argument is more aptly
framed as asserting that the trial court's failure to assess defendant's ability to pay before
ordering reimbursement for attorney fees violates defendant's right to due process because of the
principles espoused in several United States Supreme Court decisions.
The United States Court of Appeals for the Fourth Circuit, in Alexander v Johnson, 742
F2d 117, 124 (CA 4, 1984), summarized these decisions and their requirements:
Although there is no single model to which all state repayment programs
must conform, the Supreme Court has carefully identified the basic features
separating a constitutionally acceptable recoupment or restitution program from
one that is fatally defective. See Fuller v Oregon, 417 US [40, 47-54; 94 S Ct
2116; 40 L Ed 2d 642 (1974)]; James v Strange, 407 US [128, 135-139; 92 S Ct
2027; 32 L Ed 2d 600 (1972)]. See also Bearden v Georgia, 461 US 600; 103 S
Ct 2064; 76 L Ed 2d 221 (1983). In James, the first of the three decisions bearing
on this question, the Supreme Court emphasized that the indigent accepting courtappointed counsel could not be subjected to more severe collection practices than
other civil debtors without running afoul of the equal protection clause. In Fuller,
decided two years later, the Court offered important clarifications of the
developing law in this area by upholding an Oregon reimbursement plan that
required an indigent to repay court-appointed counsel fees as a condition of
probation. The Oregon approach, the Court explained, contained none of the
invidious collection practices condemned in James, provided an array of
procedural and substantive safeguards designed to preserve the indigent's basic
right to counsel, and authorized reimbursement from the defendant only when he
could afford to pay without substantial hardship. Finally, in Bearden, decided
11
Defendant also asserts that Nowicki's holding was contrary to past Michigan case law, which
held that only costs authorized by statute could be imposed on a defendant as part of his
sentence. Defendant recognizes that the Nowicki Court distinguished these cases because a
defendant's "obligation to reimburse the county for legal fees and costs is completely
independent of his sentence." Nowicki, supra at 386. But defendant asserts that this is an
impermissible distinction pursuant to Giaccio v Pennsylvania, 382 US 399; 86 S Ct 518; 15 L Ed
2d 447 (1966). However, Giaccio held that imposition of attorney fees on an acquitted
defendant violates due process and, thus, has no bearing on the Nowicki decision.
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nearly a decade later, the Court added a new gloss to the general jurisprudence in
this area by ruling that an inmate violating any monetary requirement of his
probation or restitution regimen cannot be imprisoned if his non-compliance
results from poverty alone.
From the Supreme Court's pronouncements in James, Fuller, and
Bearden, five basic features of a constitutionally acceptable attorney's fees
reimbursement program emerge. First, the program under all circumstances must
guarantee the indigent defendant's fundamental right to counsel without
cumbersome procedural obstacles designed to determine whether he is entitled to
court-appointed representation. Second, the state's decision to impose the burden
of repayment must not be made without providing him notice of the contemplated
action and a meaningful opportunity to be heard. Third, the entity deciding
whether to require repayment must take cognizance of the individual's resources,
the other demands on his own and family's finances, and the hardships he or his
family will endure if repayment is required. The purpose of this inquiry is to
assure repayment is not required as long as he remains indigent. Fourth, the
defendant accepting court-appointed counsel cannot be exposed to more severe
collection practices than the ordinary civil debtor. Fifth, the indigent defendant
ordered to repay his attorney's fees as a condition of work-release, parole, or
probation cannot be imprisoned for failing to extinguish his debt as long as his
default is attributable to his poverty, not his contumacy.
Thus, we must determine if the sentencing court's procedure in this case passes constitutional
muster, as there is no statutory procedure in place.12 Defendant specifically contends that the
trial court's procedure for imposing attorney fees on a criminal defendant violates due process
because it lacks the second and third features noted above.
Defendant first argues that the trial court's decision to order repayment was made without
notice. But this is simply untrue. Paragraph 7 of the Petition and Order for Court Appointed
Attorney, which defendant signed and presumably understood, states, "I understand that I may be
ordered to repay the court for all or part of my attorney and defense costs." In regard to
defendant's opportunity to be heard, defendant was not prevented from objecting at sentencing
and asserting his indigency.
The crux of defendant's claim appears to be that the trial court should have made a
specific finding on the record regarding his ability to pay. We do not believe that requiring a
court to consider a defendant's financial situation necessitates such a formality, unless the
defendant specifically objects to the reimbursement amount at the time it is ordered, although
such a finding would provide a definitive record of the court's consideration. However, the court
12
We encourage the Legislature to codify such a procedure. Because the due process concerns
are nearly identical to those implicated where restitution is ordered, the restitution statute, MCL
769.1a, may provide a useful framework.
-8-
does need to provide some indication of consideration, such as noting that it reviewed the
financial and employment sections of the defendant's presentence investigation report or, even
more generally, a statement that it considered the defendant's ability to pay. See People v Grant,
455 Mich 221, 242, 243 n 30; 565 NW2d 389 (1997). The amount ordered to be reimbursed for
court-appointed attorney fees should bear a relation to the defendant's foreseeable ability to
pay.13 A defendant's apparent inability to pay at the time of sentencing is not necessarily
indicative of the propriety of requiring reimbursement because a defendant's capacity for future
earnings may also be considered. See Grant, supra at 242 n 27; United States v Gabriele, 24
F3d 68, 73 (CA 10, 1994).
In this case, we find the court's comments insufficient to conclude that the court
considered defendant's financial circumstances. After pronouncing sentence, the sentencing
judge simply stated, "Fines and costs, $60 to the DNA test, $60 to the crime victim rights fund.
It's a bench trial so the PD fund will make it only $450 and $150 to the forensic lab for the
testing fee here." Although the court had the presentence report before it, the record is devoid of
any indication that the court recognized that defendant's ability to pay needed to be considered
when imposing a reimbursement requirement, unlike fines and costs. Therefore, we remand this
case for the court to reconsider its reimbursement order in light of defendant's current and future
financial circumstances.14 Additionally, we vacate that portion of defendant's judgment of
sentence requiring defendant to pay $450 for his court-appointed attorney. If, in its discretion,
the trial court determines that reimbursement is appropriate, it should establish the terms
pursuant to which repayment is required in a separate order.15
It is important to recognize that the purpose of the court considering a defendant's
financial situation is to ensure that "repayment is not required as long as he remains indigent."
Alexander, supra at 124; see also Fuller, supra at 53-54. We note that, in most cases, challenges
to the reimbursement order will be premature if the defendant has not been required to
commence repayment. People v Guajardo, 213 Mich App 198, 202; 539 NW2d 570 (1995);
People v LaPine, 63 Mich App 554, 556, 558; 234 NW2d 700 (1975). "[I]f payment is
impossible or would constitute an undue hardship," the court has the ability to modify the
13
See Lewis v Dep't of Corrections, 232 Mich App 575, 584; 591 NW2d 379 (1998) (the
reinstatement of the petitioner's obligation to pay filing fees was not error where the court
considered the petitioner's financial situation); People v LaPine, 63 Mich App 554, 558; 234
NW2d 700 (1975) (an abuse of discretion was not found in requiring a defendant to reimburse
the county for the cost of transcripts furnished to perfect an appeal in which the reimbursement
fairly reflected the defendant's ability to pay).
14
Just as an evidentiary hearing is not required at the trial level, one is not required on remand.
The court may obtain updated financial information from the probation department.
15
Because Michigan currently lacks a statutory scheme which authorizes repayment of courtappointed attorney fees, repayment may not be imposed as part of the sentence. "[D]efendant's
obligation to reimburse the county for legal fees and costs is completely independent of his
sentence." Nowicki, supra at 386.
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amount or conditions of repayment or withdraw the order upon a proper motion by the
defendant. LaPine, supra at 558.
Defendant's convictions and sentences are affirmed. We vacate that portion of the
judgment requiring defendant to reimburse the county $450 for his legal fees and remand to the
trial court for reconsideration of this issue in light of the principles espoused above. We do not
retain jurisdiction.
/s/ Michael R. Smolenski
/s/ Janet T. Neff
/s/ Bill Schuette
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