Case No. COA

Transcription

1 ur-^ IN THE SUPREME COURT OF OHIO STATE OF OHIO, Plaintiff-Appellee, V. JEROME REED, Defendant-Appellant Case No. COA On Appeal from the County Court of Appeals EIGHT Appellate District C.A. Case No. ^ rrtn, n uoga, MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT WILLIAM MASON PROSCCUTORNAME JEROME REED, #A NAMEANDNNlABER 1200 ONTARIO STREET MARION CORRECTIONAL INSTITUTION AODRLSS MSTITNTION CLEVELAND, OHIO P.O. BOX 57 CITY, STATE & 21P (216) ADDRESS Pf1ONE CITY,STATE &ZIP Marion, Ohio COUNSEL FOR STATE OF OHIO DEFENDANT-APPELLANT, PRO SE rl^t_ ti ^ ^Utl^ SUPREM"URfi URT QFdH10

2 TABLE OF CONTENTS Page Number EXPLANATION OF WAY TIIIS CASE IS ONE OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION... ^-. 3 STATEMENT OF THE CASE AND FACTS `.? ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW... CONCLUSION CERTIFICATE OF SERVICE...:. APPENDIX

3 EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION This cause four critical issues; standard procedures should be promulgated to: 1. In State V. Corbin (8th Dist. 2001) 141 Ohio app. 3d 381 this court found that the trial court did not substantially comply with Crim. R. 11 (c) where it failed to inform defendant of the full legal ramifications of defendant's plea that he would received consecutive sentence totaling a surprise number of years. Defendant herein would have proceeded to trial, had he known he was going to receive seven and a half-years on consecutive sentences. 2. Accordingly, the underlying purpose of Ohio Rule of Criminal Procedure 11 is to convey to a defendant certain information so that he can make a voluntary and intelligent decision whether to plead guilty or no contest. Manifest injustice would occur in that the appellant has not made a voluntary plea as is required by the constitution. The court failed to explain to the appellant his rights under Crim Rule 11 (C)(2)(C) and the nature andcircumstances of the offense to which he pled. Clearly the appellant did not understand the charges to which he entered a plea of guilt. Where the rule is complied with during the plea hearing, a presumption exists that the plea is voluntarily entered. However, where the record viewed in its totality reveals that the defendant was confused and hesitant, the plea must be voided. 2

4 3. Defendant herein has demonstrated ineffective assistance of counsel and that his attorney performance was indeed deficient and prejudiced which falls below an objective standard of reasonable representation in the court of law. In State V. Lavender, Lake App. No. 2000L-0459, 2001-Ohio-8790: which states, "prejudice arises from counsel's performance it must meet the test in State V. Day, 2008-Ohio , was deficient in the present case precluding the defendant from entering the plea knowingly and voluntarily." 4. Ohio Revised Code provides for mandatory concurrent sentences unless the provisions of Ohio Revised Code and are met. The Ohio supreme Court excised those provisions in State of Ohio V. Foster 2006-Ohio-856. May a trial court issue consecutive prison terms? Ohio Rules of Criminal Procedure 11 (C) (2) (a) requires the court to only accept a guilty plea if the defendant is informed of the maximum penalty for the charges. A plea negotiation results in a deal in which the defendant and the court are advised all cases are to be pled together. May a trial court sentence the offender to consecutive terms exceeding the maximum on any one charge? Defense counsel negotiates a plea deal with the provision all cases must be pled at once but fails to inform the defendant of relevant law. Defendant agrees believing all cases are considered as one but receives consecutive sentences. Has appointed defense counsel fell below an objective standard of reasonable representation? 3

5 STATEMENT OF THE CASE The Defendant Jerome Reed, had previously pled guilty to a felony charge was given probation, where he violated the term on four subsequent new charges. Consequently, he was order back in front of the sentencing Judge in his county, who previously gave Defendant herein probation and later accepted acquiescence on a final plea deal with the court. Defendant herein had the understanding all four subsequent charges were all going to run concurrent to the probation violation charge with mitigating circumstances. Having this in mind, the Defendant herein thought he would receive concurrent sentence pther than consecutive sentences. Thus, the Defendant herein accepts the package deal offer, and was convinced on the promises proposed to him from his defense attorney and state prosecutor, that all his cases were gong to be combined and consolidated as agreed. The trial court accept the plea arrangement, then subsequently sentenced Defendant to three consecutive sentences of the totality to be served consecutively, along with an eighteen months term for probation violation from a previous case. Whereas, the Defendant herein now appeals his conviction and sentence to this honorable court. Defendant herein wish to acquaint the court that his guilty plea was by no means made knowingly and voluntarily. As a result of the subterfuge and substandard representation, he has suffered an aborted plea deal due to ineffective counsel; explicit support as follow: 4

6 STATEMENT OF THE FACTS On July 5, 2005 Defendant Jerome Reed was sentenced on the charges of Burglary (F-3) and a Theft charge (F-4) to which he pled guilty on a previous day in court. The court sentenced him to two years Community Control sanctions noting that any violation could result in "more restrictive sanctions, or a prison term of up to 18 months as approved by law." See Docket in Cuyahoga County Court Case Number CR A. On March 30, 2007 the Defendant Jerome Reed was in Cuyahoga County Court on new cases. The case numbers being: CR A, CR A, CR A, CR A. Defendant Jerome Reed, now appeal his conviction and sentence. 5

7 PROPOSITION OF LAW Ohio Revised Code nrnviaec for manaai-nrv nnncurrent sentences unless the provisions of Ohio Revised Code and arp met Tha Ohio nnr ma cn»rt "xr" d those provisions in State of nhin v Fngfar 7006_nhin-R56. May a trial court issue consecutiva nriqnn i-arma7 Ordinarily, sentences for more than one felony will be served concurrently. Thelaw disfavors consecutive sentencing. State v. DeAmiches 2001 WL (Ohio Ct. App. 8th Dist. Cuyahoga County 2001). In fact, state v, DeAmiches, supra, held that the imposition of consecutive sentences must be justified by extraordinary circumstances. Again, it is acknowledged that state v. Foster, supra, did away with the need for the trial court to make findings under Ohio Revised Code Section (E)(4), however, it is respectifully submitted that the underlying legislative policy remains in tact. It is also respectifully submitted that although the trial court no longer needs to make findings; the court should still however be required to set forth its reasons for imposing consecutive sentences so as to allow for meaningful appellate review. Furthermore, Ohio Section (E) (4) requires a trial court to engage in a proportionality analysis Even though an offender has violated multiple statues, it is not always proper to impose consecutive sentences. The court must analyze whether consecutive sentences are disproportionate to the defendant's conduct. Although it is recognized, after Foster, supra, the sentencing judge does not have to make the findings under Ohio Revised Code Section (E)(4), the statutory policy remains clear. 6

8 Thus, the trial court should still be required to engage in a proportionality analysis as set forth in State V. Berryman 2002 WL (Ohio Ct. ap. 2d Dist. Montgomery County 2002) and State v. Reese 2002-Ohio-937, 2002 WL Ohio CT. App. 2d Dist. Clark County 2002). It is noted that findings are not required to be made but reasons should still be required to be stated so as to allow for meaningful appellate review of the trial court's sentence in light of the statutory policy which remains clear even after Foster. In the present case, it can not be said that the imposition by the trial court of consecutive sentences was consistent with the purposes of felony sentencing set forth in ORC (A) to adequately protect the public and punish the offender. That is to say, it is respectifully submitted that.something less than the consecutive sentencing as set forth in Ohio Revised Code section (A). Furhtermore, even if the trial court had made such a finding, it is respectfully submitted that it is clear in the present case that the sentences imposed an unnecessary burden on state or local government resources. Therefore, the sentences herein are contrary to law and violate the specific prohibition against imposition of an unnecessary burden on state or local government resources set forth in Ohio Revised Code section (A). 7

9 CONCLUSION This case raises a substantial constitutional question, involves a felony and is one of public or great general interest. Review 7hould be granted in t JEROME REED, # A NUM ER MARION COR ONAT, TNSTTT[1TTnA,^MQ RnX 57 I M^RTlIra nutn DEFENDANT-APPELLANT, PRO SE CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing Memorandum in Support of Jurisdiction of Appellant A.99D, has been served by U.S. mail postage pre-paid to WILLIAM MASON, Prosecuting Attorney 1200 ONTARIO STREET CLEVELAND,, OHIO this day of JEROME REED, # A ^ NON MB DEFENDANT-APPELLANT, PRO SE #

10 F^^^ COPY. Tuur# uf apiettlo EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA MAY JOURNAL ENTRY AND OPINION No STATE OF OHIO PLAINTIFF-APPELLEE vs. JEROME REED DEFENDANT-APPELLANT JUDGMENT: AFFIRMED Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR , CR , CR , CR BEFORE: Cooney, A.J., Rocco, J., and Jones, J. RELEASED: May 14, 2009 JOURNALIZED: MAY !Fa

11 -i- ATTORNEY FOR APPELLANT Jeffrey Froude Clifton Blvd. Lakewood, Ohio ATTORNEYS FOR APPELLEE William Mason Cuyahoga County Prosecutor BY: John Hanley Assistant County Prosecutor 961i Floor, Justice Center 1200 Ontario Street Cleveland, Ohio FILED AND IOURN'AC.IZED PFR APP. R. 22Ip'1 MAY ALO E. FUERST Oy OFAPPEALS DEP. ANNOUNCEMENT OF DECISION PER APP. R. 22(Hi, 22(DJ AND 26(A) REC` r CA AbD E. FUERST ^ C^JUJRT OF APPEALS DEP. I I I' I'I' II II I"II I II I' I I I I I' I II"' II I"III I^ II II' N.B. This entry is an announcement of the court's decision. See App.R. 22(B) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(C) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(C). See, also, S.Ct. Prac.R. II, Section 2(A)(1) U6047a

12 -1- COLLEEN CONWAY COONEY, A.J.: Defendant-appellant, Jerome Reed ("Reed"), appeals several convictions and his prison sentence of seven and one-half years. Finding no merit to the appeal, we affirm. Between July 2006 and December 2006, Reed was indicted in four separate cases.' The indictinents inciuded five counts of theft, four counts of receiving stolen property, four counts of misuse of credit cards, two counts of forgery, two counts of burglary, attempted burglary, breaking and entering, and passing bad checks. In March 2007, Reed entered into a plea agreement on all four cases. In total, he pled guilty'to four counts of theft, four counts of receiving stolen property, two counts of burglary, attempted burglary, and forgery. In April 2007, the trial court sentenced Reed on these cases as well as Case No. CR , involving a probation violation. The trial court imposed a total sentence of seven and one-half years in prison. Reed now appeals, raising three assignments of error for our review. 'Case Nos. CR , CR , CR , and CR USIr='J r- Q r) -AoP, 1. '7 1

13 -2- Consecutive Sentences In the first assignment of error, Reed alleges that the trial court erred in imposing consecutive, rather than concurrent, sentences. He claims that Crim.R. 13 requires that his plea package be treated as one indictment and sentence. First, we note that Reed did not include Case No. CR in his notice of appeal. It is axiomatic that the notice of appeal must specify the judgment being appealed. See App.R. 3(D); State v. Pond, Cuyahoga App. No , Ohio- 849, Q 4. Therefore, we lack jurisdiction to consider any assignment of error regarding Case No. CR See State v. Stewart, Cuyahoga App. No , 2006-Ohio-813, q 52; Parks v. Baltimore & Ohio RR. (1991), 77 Ohio App.3d 426, 427, 602 N.E.2d 674 (holding that a court of appeals lacks jurisdiction to review a judgment or order that is not designated in the notice of appeal). Accordingly, we consider Reed's sentences on the cases that lhe properly appealed. These include three consecutive two-year sentences. We review felony sentences as the Ohio Supreme Court declared in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio The Kalish court, in a split decision, declared that in applying State v. Foster, 109 Ohio St.3d 1, 2006-Ohio- U9682 FGO475

14 W r : i ) pr C) 4 7^ , 845 N.E.2d 470, to the existing statutes, appellate courts "must apply a two-step approach." Kalish at 4.2 Appellate courts must first "examine the sentencing court's compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law." Id. at 4, 14, 18. If this first prong is satisfied, then we review the trial court's decision under an abuse-of-discretion standard. Id. at 14, 19. In the first step of our analysis, we review whether the sentence is contrary to law as Reed maintains. Crim.R. 13 is inapplicable to the instant case. The rule deals solely with the court's ordering two or more indictments to be tried together. Reed pled guilty and waived his right to a trial in the instant case. He never objected to the court's consolidating his four criminal cases for purposes of his plea. Therefore, his argument that Crim.R. 13 required the trial court to impose concurrent sentences is without merit. As the Kalish court noted, post-foster, "trial courts have full discretion to impose a prison sentence within the statutory range and are no longer required 2We recognize Kalish is merely persuasive and not necessarily controlling because it has no majority. The Supreme Court split over whether we review sentences under an abuse-of-discretion standard in some instances.

15 -4- to make findings and give reasons for imposing maximum, consecutive or more than the minimum sentence." Id. at 11; Foster, paragraph seven of the syllabus; State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, paragraph three of the syllabus. See, also, State v. Redding, Cuyahoga App. No , 2008-Ohio-5739; State v. Ali, Cuyahoga App. No , 2008-Ohio-4449; State v. McCarroll, Cuyahoga App. No , 2007-Ohio-6322; State v. Sharp, Cuyahoga App. No , 2007-Ohio The Kalish court declared that although Foster eliminated mandatory judicial fact-finding, it left R.C and intact. Kalish at 13. As a result, the trial court must still consider these statutes when imposing a sentence. Id., citing Mathis at 138. R.C (A) provides that: "[A] court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing[,] *** to protect the public from future crime by the offender and others and to punish the offender. To achieve those purposes, the sentencing court shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both." R.C provides a nonexhaustive list of factors a trial court must consider when determining the seriousness of the offense and the likelihood that the offender will commit future offenses. V%0682 P60477

16 vm: P,G The Kalish court also noted that R.C and are not fact-finding statutes like R.C Kalish at 117. Rather, they "serve as an overarching guide for trial judges to consider in fashioning an appropriate sentence." Id. Thus, "[i]n considering these statutes in light of Foster, the trial court has full discretion to determine whether the sentence satisfies the overriding purposes of Ohio's sentencing structure." Id. In the instant case, the trial court expressly stated that it considered the purposes of R.C and , and all factors required by law. Furthermore, Reed's sentences are within the permissible statutory ranges. Thus, we find that his sentences are not contrary to law. Having satisfied step one, we next consider whether the trial court abused its discretion. Kalish, at 4, 19. An abuse of discretion is "more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Id. at 119, citing Blakernore u. Blahemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d. 3However, the United States Supreme Court recently upheld a judicial factfinding statute similar to R.C , calling into question the Foster court's abrogation of R.C (B) and (C) and (B)(2). Oregon v. Ice (2009), U.S., 129 S.Ct. 711, 714, 172 L.Ed.2d 517. The Court held that laws that require judges "to find certain facts before imposing consecutive, rather than concurrent, sentences" do not violate the Sixth Amendment. Id. The Ohio Supreme Court has not yet acknowledged Ice, but two Ohio appellate districts have. State v. Starett, Athens App. No. 07CA30, 2009-Ohio-744, fn. 2; State v. Jones, Greene App. No. 08CA0008, 2009-Ohio-694, 8.

17 -6- A review of the record reveals that the trial court did not abuse its discretion. The trial court considered the statutory factors under R.C and It consulted several sources to assist in sentencing. These included a presentence investigation report, a court psychiatric report, and testimony from Reed and his brother. The trial court then outlined Reed's extensive criminal record and noted that Reed had violated his parole in another case. The court found that Reed was likely to reoffend based upon the repeating pattern of his crimes. The court indicated that Reed could have secured gainful employment and had no valid excuse for his crimes. We find nothing in the record to suggest that the trial court's decision was unreasonable, arbitrary, or unconscionable. Accordingly, the trial court did not abuse its discretion in imposing consecutive sentences in separate cases. We, therefore, overrule Reed's first assignment of error. Validity of the Guilty Plea In the second assignment of error, Reed alleges that his guilty plea was not knowing, intelligent, and voluntary. He claims that the trial court failed to advise him that it could impose consecutive prison terms, failed to ensure that he understood the plea agreement, and allowed him to plead guilty to an illegal plea agreement based upon a sentencing package. VO1:5682 P00479

18 vpffl ^ 8 2 Pri n (a R n -7- A guilty plea will be considered knowing, intelligent, and voluntary if the trial court, at the very least, substantially complied with the procedures set forth in Crim.R. 11 regarding nonconstitutional rights. State v. Nero (1990), 56 Ohio St.3d 106, 108, 564 N.E.2d 474. "Substantial compliance means that, under the totality of the circumstances, the defendant subjectively understands the implications of his plea and the rights he is waiving." Id. Crim.R. 11(C)(2) describes the procedure courts must follow when accepting felony guilty pleas. It provides, "In felony cases the court *** shall not accept a plea of guilty *** without first addressing the defendant personally and doing all of the following: (a) Determining that the defendant is inaking the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and, if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing. (b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty *** and that the court, upon acceptance of the plea, may proceed with judgment and sentence. (c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant's favor, and to require the state to prove the defendant's guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself." Id. In the instant case, the trial court complied with the requirements set forth in Crim.R. 11, so Reed's guilty pleas were knowing, intelligent, and voluntary. Crim.R. 11 does not require a court to notify a defendant that it may

19 -8- impose consecutive sentences when the defendant pleads guilty to multiple offenses. State v. Kerin, Cuyahoga App. No , 2005-Ohio-4117, 8, citing State v. Johnson (1988), 40 Ohio St.3d 130, 532 N.E.2d 1295, at syllabus. During the proceedings, the trial court encouraged Reed to interrupt at any point to ask questions about the plea process. The court advised Reed of the maximum sentence for each of the charges to which he pled guilty. Given that the trial court complied with Crim.R. 11, Reed's claim that he did not understand the plea agreement cannot be grounds to reverse his convictions. We find no merit to Reed's claim that the plea agreement was invalid. The "sentencing package" doctrine is "a federal doctrine that requires [federal courts] to consider the sanctions imposed on multiple offenses as the components of a single, comprehensive sentencing plan." State u. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, 5. Thus, the sentences are "lumped" together into one sentence, which may then be vacated or modified as a whole. Id. at 6. In Saxon, the Ohio Supreme Court held that Ohio does not apply sentencing packages. Id. at 10. Instead, Ohio's felony sentencing scheme requires the judge to determine a sentence for each offense separately, then to decide whether the sentences should run concurrently or consecutively. Id. at 8-9. IrLNJ 682 Rfi048 1

20 Ui31C:5i R9 ;On fli,q7-9- In the instant case, the trial court separately addressed each offense to which Reed pled guilty. Once the court imposed a sentence for each offense, it determined whether the sentences would run concurrently or consecutively. Thus, the trial court did not apply a sentencing package or enforce an invalid plea agreement. Accordingly, we overrule Reed's second assignment of error. Ineffective Assistance of Counsel In the third assignment of error, Reed alleges that he was denied effective assistance of counsel. Specifically, he claims that his attorney misinformed him about possible sentences and allowed him to plead guilty to.an unlawful "package deal." These claims cannot support his claim of ineffective assistance of counsel. "A defendant has the burden of proving ineffective assistance of counsel and there is a strong presumption that a properly licensed trial counsel rendered adequate assistance." State v. Page, Cuyahoga App. No , 2008-Ohio-4244, 110, citing State v. Smith (1985), 17 Ohio St.3d 98, 100, 17 Ohio B. 219, 477 N.E.2d As a result, where a defendant complains of ineffective assistance of counsel in relation to a guilty plea, the defendant must prove the two parts of the Strickland test. State v. Xie (1992), 62 Ohio St.3d 521, 524, 584 N.E.2d 715, citing Hill v. Lockhart (1985), 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203, and

21 >P1; tl L R i -10- Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. "First, the defendant must show that counsel's performance was deficient." Id. Next, "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Lockhart, at 59; State v. Ketterer, 111 Ohio St.3d 70, Ohio-5283, 855 N.E.2d 48, 89. The failure to prove either part of the test makes it unnecessary for a court to consider the other part. State v. Madrigal, 87 Ohio St.3d 378, 389, 2000-Ohio-448, 721 N.E.2d 52, citing Strickland. The record in the instant case contains no evidence that Reed's counsel misinformed him about possible sentences. A claim of ineffective assistance of counsel that raises matters not appearing in the record may not properly be raised in a direct appeal but can only be considered in a postconviction relief proceeding. State v. Gibson (1980), 69 Ohio App.2d 91, 95, 430 N.E.2d 954 ("It is impossible for this court to determine on a direct appeal from a conviction whether an attorney was ineffective in his representation of a criminal defendant, where the allegation of ineffectiveness is based on facts dehors the record."). See, also, State u. Krocker (Sept. 7, 2000), Cuyahoga App. No Further, once the trial court imposed the sentence, Reed could have objected on the record. He could have informed the trial court that his counsel had failed to advise him that his sentence could be seven and one-half years. His

22 tmt*'^58 2 F failure to object undermines his claim that his counsel misinformed him about possible sentences. Finally, when he entered his guilty plea, he testified that he was satisfied with his counsel's performance. Based on the foregoing, Reed has not met his burden to show that his counsel's performance was deficient. Reed cannot meet the second part of the Strickland test either. He has not proven that he would liave proceeded to trial without his coun.sel's allegedly deficient advice. Before he pled guilty to each offense, the trial court informed him of the maximum penalties for each charge. Once he was informed of the possible maximum sentences, he could have asked to go to trial instead. He did not. Because he cannot meet either part of the Strickland test, Reed cannot maintain his claim of ineffective assistance of counsel. Consequently, we overrule the third assignment of error. Judgment is affirmed. It is ordered that appellee recover of appellant costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.

23 -12- A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. ^ o COLLEEN CONWAY,C/OONEY, ADMINISTRATIVE JUDGE KENNETH A. ROCCO, J., AND LARRY A. JONES, J., CONCUR V ?160485