HomeMy WebLinkAbout99-0268 criminalCOMMONWEALTH
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Mo
LOUIS GREENLEY 99-0268 CRIMINAL TERM
OPINION AND ORDER OF COURT
Bayley, J., October 13, 1999:-- ~..
On July 21, 1999, a jury convicted defendant, Louis Greenley, of robbery,~ theft
by unlawful taking? aggravated assault,3 simple assault,4 and a second count of simple
assault2 Prior to the commencement of trial defendant pled guilty to a count of unlawful
possession and use of a firearm by a person having previously been
~ 18 Pa.C.S. § 3701(a)(i), (ii) and (iii). This was a robbery of a Rite Aid drug
store and is graded a felony in the first degree.
2 18 Pa.C.S. § 3921(a). This theft was a lesser included offense to the robbery
and is graded a misdemeanor in the second degree.
3 18 Pa.C.S. § 2702(a)(1) and (2). This aggravated assault was on a police
officer, Gary Bonner, who, while off duty, went into the Rite Aid when the robbery and
theft occurred. The offense is graded a felony in the first degree.
"18 Pa.C.S. § 2701(a). This simple assault with respect to Officer Bonner was
a lesser included offense to the aggravated assault and is graded a misdemeanor of
the second degree.
~ 18 Pa.C.S. § 2701(a). This simple assault was on Janet Rich, a clerk at the
Rite Aid, and is graded a misdemeanor of the second degree.
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convicted of an offense enumerated in 18 Pa.C.S. Section 6105(a)(1).6 The evidence
at trial in a light most favorable to the Commonwealth was as follows.
At approximately 7:30 p.m. on November 28, 1999, defendant entered a Rite Aid
store in Cumberland County. He approached a clerk, Janet Rich, and told her "1 have a
gun - open the register or I will shoot you." Rich was nervous and could not get the
register open. Defendant then said "1 ain't kidding lady. Open the door or I'll shoot
you." When Rich was still unable to open the register defendant threw it on the floor.
Susan Greenberg, the store manager, heard the commotion and went to another
register which she was able to open. As these events were occurring, Linda Bonner
and her husband Gary Bonner, an off-duty police officer, parked their car in front of the
store. As Linda Bonner was going into the store she heard defendant tell the clerk to
open the register. She went back to the car and told her husband what was happening.
While she called 911, Officer Bonner entered the store. He was not in uniform but
displayed his police ID badge and his personal loaded handgun. He told defendant that
he was a police officer at which point defendant physically attacked him. Bonner got
the magazine out of his gun which left one round in the chamber. He and defendant
fought. Defendant bit him in the neck at which time the weapon discharged. The bullet
6 18 Pa.C.S. § 6105(a)(1). The firearm was the personal weapon of Officer
Bonner over which defendant gained control, and which discharged when he assaulted
the officer who was trying to apprehend him during the robbery of a Rite Aid store. The
offense is graded a misdemeanor of the first degree at 18 Pa.C.S. 6119.
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struck the last joint in Bonnet's left index finger. Defendant and Bonner continued to
struggle and Bonner let go of the empty gun. Defendant grabbed the gun, hit Bonner in
the head and the face with the weapon, took some money out of the cash register, ran
out of the store, threw the gun away and went to his car. Bonner ran out of the store
where his wife retrieved his gun and gave it to him. He I~ut a loaded clip in and as
t,,..~. Bsfore he could do so the car hit
defendant drove his car he decided to shoot the ;':~
him throwing him over the hood on the passenger side. Defendant escaped and was
not captured until January 25, 1999. Bonner spent five days in the hospital where he
was treated for abrasions, a broken bona in his finger, a fractured shoulder, the bite to
his neck, and a broken tooth.
The Commonwealth gave defendant two written notices of "mandatory
sentence:"
[t]he Commonwealth will proceed under the mandatory sentencing
provisions of 42 Pa.C.S.A. §9712, Sentences for Offenses Committed
With Firearms and will seek the imposition of no less than a five-year
minimum sentence in a state prison if defendant is convicted of
ROBBERY AND/OR AGGRAVATED ASSAULT.
It]he Commonwealth will proceed under the mandatory sentencing
provisions of 42 Pa.C.S.A. §9714, Sentences for Second and Subsequent
Offenses and will seek the imposition of no less than a five-year minimum
sentence in a state prison if defendant is convicted of Robbery and/or
Aggravated Assault. Furthermore, the Commonwealth will seek a
sentence of life imprisonment in a state prison upon a showing in court
that 25 years imprisonment is insufficient to protect the public's safety
should the defendant be convicted of Robbery and/or Aggravated Assault.
A pre-sentence investigation has been completed which sets forth defendant's
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prior criminal record which would trigger the mandatory sentencing provisions in 42
Pa.C.S. Section 9714(a)(?-) and (a.1). Defendant challenges that conclusion. A
hearing was conducted on September 21, 1999, pursuant to 42 Pa.C.S. Section
9714(d) for the purpose of receiving evidence for the court to determine defendant's
previous convictions. Defendant has also challenged the constitutionality of 42 Pa.C.S.
Section 9714 which has been briefed and argued.
The certified records in the Court of Common Pleas of Allegheny County,
Pennsylvania shows that at criminal docket 91-12076, informations were filed against
Louis Greenley charging him with two counts of robbery occurring during a single
criminal transaction at a Foodland Market on August 23, 1991. The first count, graded
a felony in the first degree charged that:
The actor in the course of committing a theft, namely, $600.00 United
States currency belonging to Foodland either inflicted serious bodily injury
upon Robin Shuglie threatened that person or persons with, or put that
person or persons in fear of immediate serious bodily injury, in violation of
Section 3701(a)(1)(i) or (ii) of the Pennsylvania Crimes Code, Act of
December 6, 1972, 18 Pa. C.S. § 3701(a)(1)(i) or (ii).
The second count graded a felony of the first degree charged that:
The actor in the course of committing a theft, namely, $600.00 United
States currency belonging to Foodland either inflicted serious bodily injury
upon Donna Hess threatened that person or persons with, or put that
person or persons in fear of immediate serious bodily injury, in violation of
Section 3701(a)(1)(i) or (ii) of the Pennsylvania Crimes Code, Act of
December 6, 1972, 18 Pa. C.S. § 3701(a)(1)(i) or (ii).
The disposition of the two counts was made on February 12, 1992 when:
The Defendant present in open court with counsel, pleads guilty to the
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preferred charges in the within information.
In the Court of Common Pleas of Allegheny County, Pennsylvania at criminal
docket 91-12070, an information was filed against Louis Greenley charging him with a
count of robbery occurring on August 24, 1991 graded a felony of the first degree:
The actor in the course of committing a theft, namely, approximately
$177.00 United States currency belonging to Ponderosa Steak House
either inflicted serious bodily injury upon Lou Forlini threatened that
person or persons with, or put that person or persons in fear of immediate
serious bodily injury, in violation of Section 3701(a)(1)(i) or (ii) of the
Pennsylvania Crimes Code, Act of December 6, 1972, 18 Pa. C.S. §
3701(a)(1)(i) or (ii).
Disposition was made on February 12, 1992 when:
The Defendant present in open court with counsel, plead guilty to the
preferred charges in the within information.
In the Court of Common Pleas of Allegheny County, Pennsylvania at criminal
docket 94-15215 an information was filed against Louis Greenley charging him with two
counts of robbery and a count of criminal conspiracy occurring in a single transaction on
February 8, 1994, with the two counts of robbery graded a felony in the first degree and
the criminal conspiracy graded a felony in the second degree:
Count 1-2 ROBBERY Felony 1
The actor in the course of committing a theft, namely, a wallet, $30.00
United States currency and miscellaneous credit and ID cards belonging
to Sophie Caugh and assorted jackets and shoes and $300.00 United
States currency totally valued at $690.00 belonging to My Foot Store
either inflicted serious bodily injury upon the following victims, each a
separate count:
COUNT VICTIM
1 Sophie Chough
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2 Won Been Chough
Threatened that person or persons with, or put that person or persons in
fear of immediate serious bodily injury, in violation of Section 3701(a) (1)(i)
or (,ii) of the Pennsylvania Crimes Code, Act of December 6, 1972, 18 Pa.
C.S. §3701(a)(1)(i) or (ii).
Count 3 CRIMINAL CONSPIRACY Felony 2
The actor, with the intent of promoting or facilitating the crime(s) charged
above, conspired and agreed with an unknown male that they or one or
more of them Would engage in conduct constituting such crime or crimes,
and in furtherance thereof did commit the overt act of putting the victim in
fear of serious bodily injury and stealing, as charged above in violation of
Section 903(a)(1) of the Pennsylvania crimes Code, Act of December 6,
1972, 18 Pa. C.S. §903(a)(1).
Disposition was made on July 6, 1995, when:
The Defendant present in open court with counsel, plead guilty to the
preferred charges to Cts. 1 & 2 and Nolo Contendere to Ct. 3 in the
within information.7
At the within sentencing hearing in this court, the police officers who arrested
Louis Greenley for the two counts of robbery in Allegheny County for which he was
convicted that occurred on August 23, 1991, the robbery for which he was convicted
that occurred on August 24, 1991, and the two counts of robbery and the count of
criminal conspiracy for which he was convicted that occurred on February 8, 1994,
identified defendant herein as the same Louis Greenley who committed those offenses.
The Judicial Code at 42 Pa.C.S. § 9714 provides:
(a) Mandatory sentence.--
7 On August 11, 1998, Greenley obtained post-conviction relief to the extent that
his sentences were vacated and new sentences imposed on the dispositions made on
July 6, 1995.
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(1) Any person who is convicted in any court of this
Commonwealth of a crime of violence shall, if at the time of the
commission of the current offense the person had previously been
convicted of a crime of violence and has not rebutted the presumption of
high risk dangerous offender as provided in subsection (c), be sentenced
to a minimum sentence of at least ten years of total confinement,
notwithstanding any other provision of this title or other statute to the
contrary. If at the time of the commission of the current offense the
person has previously been convicted of a crime of violence and has
rebutted the presumption of high risk dangerous offender as provided in
subsection (c), the person shall be sentenced to a minimum sentence of
at least five years of total confinement, notwithstanding any other
provision of this title or other statute to the contrary. Upon a second
conviction for a crime of violence, the court sha~l give the person oral and
written notice of the penalties under this section for a third conviction for a
crime of violence. Failure to provide such notice shall not render the
offender ineligible to be sentenced under paragraph (2).
(2) Where the person had at the time of the commission of the
current offense previously been convicted of two or more such
crimes of violence arising from separate criminal transactions, the
person shall be sentenced to a minimum sentence of at least 25
years of total confinement, notwithstanding any other provision of
this title or other statute to the contrary. Proof that the offender
received notice of or otherwise knew or should have known of the
penalties under this paragraph shall not be required. Upon conviction
for a third or subsequent crime of violence the court may, if it
determines that 25 years of total confinement is insufficient to
protect the public safety, sentence the offender to life imprisonment
without parole.
(a.1) Mandatory maximum.--An offender sentenced to a
mandatory minimum sentence under this section shall be sentenced
to a maximum sentence equal to twice the mandatory minimum
sentence, notwithstanding 18 Pa. C.S. § 1103 (relating to sentence of
imprisonment for felony) or any other provision of this title or other statute
to the contrary.
(b) Presumption of high risk dangerous offender.--For the
purposes of subsection (a), an offender shall be presumed to be a high
risk dangerous offender and shall be deemed to have prior convictions for
crimes of violence if both of the following conditions hold:
(1) The offender was previously convicted of a crime of
violence. The previous conviction need not be for the same crime
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as the instant offense for this section to be applicable.
(2) The previous conviction occurred within seven years of
the date of the commission of the instant offense, except that any
time during which the offender was incarcerated in any
penitentiary, prison or other place of detention or on probation or
parole shall not be considered in computing the relevant seven-
year period. Convictions for other offenses arising from the same
criminal transaction as the instant offense shall not be considered
previous convictions for the purpose of this section. For purposes
of this section previous conviction shall include any conviction,
whether or not judgment of sentence has been imposed or litigation
is pending concerning that conviction.
(c) High risk dangerous offender.--
(1) In addition to any other provision of this section, a court
shall hold a hearing for an offender presumed to be a high risk
dangerous offender pursuant to the provisions of subsection (b).
The court shall schedule a hearing and receive such evidence from
the offender as may be relevant to whether the presumption shall
apply. If the offender presents evidence in opposition to the
presumption, the attorney for the Commonwealth may present
evidence in support of the presumption.
(2) in determining whether the offender is a high risk
dangerous offender, the court shall consider, but not be limited to,
such factors as:
(i) Age of the offender.
(ii) Age of the victim.
(iii) Use of illegal drugs or alcohol by the offender.
(iv) Offender's prior criminal record.
(v) Whether the offense involved multiple victims.
(vi) Offender's failure to complete a prior sentence.
(vii) Any mental illness or mental disability of the
offender.
(viii) If the offense included attempted or actual
sexual contact with the victim and was part of a
demonstrated pattern of abuse.
(ix) If the offense included a display of unusual
cruelty by the offender during the commission of the crime.
(x) The nature and circumstances of the current
offense.
(xi) The use of a deadly weapon as defined in 18
Pa.C.S. § 2301 (relating to definitions) during the
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commission of the current offense.
(xii) The impact of the current offense on the victim
and the extent of injury caused to the victim as a result of
the current offense.
(3) In determining whether the offender is a h~,gh risk
dangerous offender, the court may order a psychiatric or
psychological examination of the offender.
(4) If the court determines that the offender is a high risk
dangerous offender, the court shall state on the sentencing order
that the offender has been determined to be a high risk dangerous
offender and that the ten-year mandatory minimum sentence under
this section shall not apply.
(5) If the court determines that the offender has rebutted by
clear and convincing evidence the presumption that he is a high
risk dangerous offender, the court shall state on the sentencing
order that the defendant has not been determined to be a high risk
dangerous offender and that the ten-mandatory minimum sentence
under this section shall not apply.
(d) Proof of sentencing.--Provisions of this section shall not
be an element of the crime and notice thereof to the defendant shall not
be required prior to conviction, but reasonable notice of the
Commonwealth's intention to proceed under this section shall be
provided after conviction and before sentencing. The applicability of
this section shall be determined at sentencing. The sentencing court
prior to imposing sentence on an offender under subsection (a), shall
have a complete record of the previous convictions of the offender, copies
of which shall be furnished to the offender. If the offender or the attorney
for the Commonwealth contests the accuracy of the record, the court
shall schedule a hearing and direct the offender and the attorney for
the Commonwealth to submit evidence regarding the previous
convictions of the offender. The court shall then determine, by a
preponderance of the evidence, the previous convictions of the
offender and, if this section is applicable, shall impose sentence in
accordance with this section. Should a previous conviction be vacated
and an acquittal or final discharge entered subsequent to imposition of
sentence under this section, the offender shall have the right to petition
the sentencing court for reconsideration of sentence if this section would
not have been applicable except for the conviction which was vacated.
(e) Authority of court in sentencing.--There shall be no
authority in any court to impose on an offender to which this section
is applicable any lesser sentence than provided for in subsections
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(a) and (a.'1) or to place such offender on probation or to suspend
sentence. Nothing in this section shall prevent the sentencing court from
imposing a sentence greater than that provided in this section.
Sentencing guidelines promulgated by the Pennsylvania
Commission on Sentencing shall not supersede the mandatory
sentences provided in this section.
(g) Definition.--As used in this section, the term 'crime of
violence' means murder of the third degree, voluntary manslaughter,
aggravated assault as defined in '18 Pa.C.S. § 2702(a)('1) or (2)
(relating to aggravated assault), rape, involuntary deviate sexual
intercourse, arson as defined in 18 Pa.C.S. § 3301(a) (relating to arson
and related offenses), kidn~2ping, burgla,? of a structure adapted for
overnight accommodation in which at the time of the offense any person is
present, robbery as defined in '18 Pa.C.S. § 370'1(a)(1)(i), (ii) or (iii)
(relating to robbery), or robbery of a motor vehicle, or criminal attempt,
criminal conspiracy or criminal solicitation to commit murder or any of the
offenses listed above, or an equivalent crime under the laws of this
Commonwealth in effect at the time of the commission of that offense, or
an equivalent crime in another jurisdiction. (Emphasis added.)
Based upon the certified records of convictions in the Court of Common Pleas of
Allegheny County, Pennsylvania, and the identification of defendant as the person with
each such criminal conviction, the Commonwealth has proven by the preponderance of
the evidence that defendant has prior convictions for (1) two counts of robbery arising
out of a single transaction that occurred on August 23, 1991, (2) a single count of
robbery that occurred on August 24, 1991, and (3) two counts of robbery arising out of
a single transaction that occurred on February 8, 1994. All of these robberies graded a
felony in the first degree constitute prior convictions of a "crime of violence" as that term
is defined in 42 Pa.C.S. § 9714(g). Therefore, the mandatory sentencing provisions in
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Section 9714(a)(2) and (a.1) are applicable on defendant's conviction in this court on
the counts of robbery and aggravated assault as this is the fourth conviction of a crime
of violence based on the three prior transactions in Allegheny County that each resulted
in a conviction for a crime of violence. Those provisions require that defendant be
sentenced on his current robbery conviction and his aggravated assault conviction to a
mandatory minimum sentence of at least twenty-five years total confinement and a
maximum sentence of at least fifty years of total confinement notwithstanding that the
maximum penalty for a felony in the first degree would otherwise be twenty years under
18 Pa.C.S. Section 1103(1).
The mandatory sentencing provision in Section 9714(a)(1) of the Jud~,cia; Code
providing a procedure for determining if a defendant is a high risk dangerous offender
where there is one prior conviction or a crime of violence is not applicable to Section
9714(a)(2) where defendant has previously been convicted of two or more crimes of
violence arising from separate criminal transactions. Notwithstanding, defendant
maintains that the mandatory minimum sentence under Section 9714(a)(2) is
unconstitutional because the burden of proving his prior convictions should be clear and
convincing evidence instead of by a preponderance of the evidence as provided for in
the statute. We disagree. This section requiring a sentence of not less than twenty-five
years or more than fifty years based on defendant's prior criminal record is not different
than the statutory mandatory minimum sentence that has been declared constitutional
in Commonwealth v. Wright, 508 Pa. 25 (1985), and Commonwealth v. Cannon, -11-
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508 Pa. 22 (1985), where the Supreme Court of Pennsylvania upheld the
constitutionality of 42 Pa.C.S. Section 9712 that requires a minimum sentence or five
years total confinement if it is established by a preponderance of the evidence that
defendant was in visible possession of a firearm during the commission of certain
felonies.
Defendant challenges the constitutionality of 42 Pa.C.S. 9714(a)(2) which
authorizes a sentence of life imprisonment without parole upon conviction for a third or
subsequent crime of violence if the mandatory minimum sentence of at least twenty-five
years of total confinement "is insufficient to protect the public safety." He notes
that the term "insufficient to protect the public safety" is not statutorily defined and
maintains that the provision is therefore void for vagueness under the Fifth and
Fourteenth Amendments to the United States Constitution and Article I, Section 9 of the
Pennsylvania Constitution. In Salada v. Commonwealth of Pennsylvania, 156 Pa.
Commw. 325 (1993), the Commonwealth Court of Pennsylvania stated:
'To satisfy constitutional requirements laws must 'give the person of
ordinary intelligence a reasonable opportunity to know what is prohibited,"
and, in order to prevent the evil of arbitrary enforcement, laws must
'provide explicit standards for those who apply them." Pennsylvania Bar
Association v. Commonwealth, 147 Pa.Commonwealth Ct. 351,368, 607
A.2d 850, 858 (1992) quoting Grayned v. City of Rockford, 408 U.S. 104,
108-109, 92 S.Ct. 2294, 2298-2299, 33 L.Ed.2d 222 (1972)).
See Commonwealth v. Stein, 519 Pa. 137 (1988). Generally with respect to whether
to impose a sentence of total confinement, partial confinement, a determination of guilt
without further penalty, or an order of probation, the Sentencing Code at 42 Pa.C.S.
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Section 9721(b) provides that the court shall consider, inter alia, "[t]hat the sentence
imposed should call for confinement that is consistent with the protection of the
public, the gravity of the offense as it relates to the impact on the life of the victim and
on the community, and the rehabilitative nesds of the defendant." (Emphasis added.)
We conclude that the term "insufficient to protect the public safety" in 42 Pa.C.S.
9714(a)(2) is not vague. It is the standard. Considering the statute as a whole, it
means a risk of re-offense of a crime of violence after twenty-five years of total
confinement.
Citing Commonwealth v. Hayle, 719 A.2d 763 (Pa. Super. 1998), defendant
further maintains under the Constitutions of the United States and Pennsylvania that
the statute is unconstitutional for failing to specify the burden of prOof required to find
that a mandatory minimum term of twenty-five years is insufficient to protect the public
safety. In Hayle, the Superior Court of Pennsylvania declared unconstitutional 42
Pa.C.S. 9794 providing for a determination for sentencing purposes whether a person
convicted of certain sexual offenses was a "sexually violent predator." The Court
concluded (1) that the Act's provisions which require a defendant to rebut a
presumption that the defendant is a sexually violent predator violates the Fourteenth
Amendment to the United States Constitution, and (2) that due process requires the
prosecution to prove that fact by clear and convincing evidence, rather than merely by a
preponderance of the evidence. See also Commonwealth v. Dick, 45 Cumberland
L.J. 105 (1998).
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Section 9714(a)(2) of the Judicial Code does not have a provision shifting any
burden of proof, thus Commonwealth v. Hayle is inapplicable. Section 9714(a)(2)
does not set forth any burden of proof for a finding by the court that at least twenty-five
years of total confinement is insufficient to protect the public safety. As in any sentence
in which a factor to be considered is the protection of the public, 42 Pa.C.S. Section
9721(b), the standard for making a determination of whether the mandatory minimum
sentence here is insufficient to protect the public interest involves all of the
circumstances involving the offense for which defendant is being sentenced, the past
criminal record of defendant, and all of the information contained in a pre-sentence
investigation report. See Commonwealth v. Andrews, 720 A.2d 764 (Pa. Super.
1998). There is no burden of proof required by the Constitutions of the United States
and Pennsylvania when imposing a sentence. The Sentencing Code at 42 Pa.C.S.
Section 9721(b) provides that "In every case in which the court imposes a sentence for
a felony or misdemeanor, the court shall make as a part of the record, and disclose in
open court at the time of sentencing, a statement of the reason or reasons for the
sentence imposed." That must be done in support of any sentence imposed under 42
Pa.C.S. Section 9714(a)(2).
For the foregoing reasons, the following order is entered.
ORDER OF COURT.
AND NOW, this J ~ f'- _ day of October, 1999, IT IS ORDERED:
(1) On the convictions for robbery and aggravated assault, defendant is subject
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(2)
(3)'
1999, at 1:30 p.m. in Courtroom Number 2.
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to a mandatory minimum sentence of at least twenty-five years of total confinement
under 42 Pa.C.S. Section 9714(a)(2), and a maximum sentence of twice the mandatory
minimum sentence under 42 Pa.C.S. § 9714(a.1).
42 Pa.C.S. Section 9714(a)(2) and (a.1) is not unconstitutional.
Defendant is ordered to appear for sentencing on Tuesday, October 19,
Jonathan Birbeck, Esquire
For the Commonwealth
William Braught, Esquire
For Defendant
Edgar B. Bayl-e
Gregory S. Miller, Probation Officer
:saa
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