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O'Dell v. State (2/5/2016) ap-2491

O'Dell v. State (2/5/2016) ap-2491

                                                                                            NOTICE
  

                The text            of   this opinion can be corrected before the opinion is published in the                                             

                Pacific Reporter                  .   Readers are encouraged to bring typographical or other formal                                               

                errors to the attention of the Clerk of the Appellate Courts:    



                                                            303 K Street, Anchorage, Alaska  99501  

                                                                               Fax:  (907) 264-0878  

                                                                  E-mail:  corrections@ akcourts.us  



                                  IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                                     



CHRISTOPHER  J.  O'DELL,  

                                                                                                                                                                        

                                                                                                                       Court of Appeals No. A-11986  

                                                                                                                                                                                         

                                                               Appellant,                                           Trial Court No. 3AN-12-2149 CR  



                                               v.  

                                                                                                                                       O  P  I  N  I  O  N  

                                                                                                                                                                         

STATE  OF  ALASKA,  



                                                               Appellee.                                                No. 2491 - February 5, 2016  

                                                                                                                                                                                 



                               Appeal   from  the   Superior   Court,  Third  Judicial                                                                   District,  

                                                                                                                                                        

                               Anchorage, Michael L. Wolverton, Judge.  

                                                                                                              



                               Appearances:                        Evan  Chyun,  Assistant  Public  Advocate,  and  

                                                                                                                                                                    

                               Richard Allen, Public Advocate, Anchorage, for  the Appellant.  

                                                                                                                                                                              

                               Donald  Soderstrom,  Assistant  Attorney  General,  Office  of  

                                                                                                                                                                      

                                Criminal Appeals, Anchorage, and Craig W. Richards, Attorney  

                                                                                                                                                         

                                General, Juneau, for the Appellee.  

                                                                                                             



                               Before:  Mannheimer, Chief Judge, Allard, Judge, and Suddock,  

                                                                                                                                                         

                                Superior Court Judge.*  

                                                                                    



                                              

                               Judge MANNHEIMER.  



                               Alaska Criminal Rule 53 grants broad authority to trial court judges to relax                                                                                     



the other Rules of Criminal Procedure; Rule 53 declares that the criminal rules "may be                                                                                                               



        *       Sitting    by   assignment   made   pursuant   to   Article   IV,   Section   16   of   the   Alaska  



Constitution and Administrative Rule 24(d).                                         


----------------------- Page 2-----------------------

                                                                                                                              

relaxed or dispensed with by the court in any case where it shall be manifest to the court  



                                                                                                                            

that a strict adherence to them will work injustice."  The question presented in this appeal  



                                                                                                                         

is whether a trial court can employ Criminal Rule 53 to relax the 90-day filing deadline  



                                                                                                                               

specified in Criminal Rule 32.6(c)(2) for restitution requests that are to be litigated after  



                                            

the defendant's sentencing.  



                                                                                                                                       

                     The defendant in this case, Christopher J. O'Dell, was convicted of theft,  



                                                                                                                    

and he was sentenced to pay restitution to his victims in an amount to be determined  



                                                                                                                                 

later.  Under these circumstances, CriminalRule 32.6(c)(2) gave the State 90 days to file  



                                                                                                                                

a proposed restitution order that specified (and justified) the amount of restitution, and  



                                                                             

that identified the persons who should receive it.  



                                                                                                                               

                     When the State filed the proposed restitution order  seven months late,  



                                                                                                                         

O'Dell asked the superior court to deny the State's request as untimely.  But the superior  



                                                                                                                       

court  invoked  Criminal Rule  53  to  relax the  filing deadline  and  grant  the  proposed  



                                                                                                                            

restitution.       The court concluded that the 90-day  time limit should be relaxed under  



                                                                                                                         

Rule 53  because it would be manifestly unjust to deny recovery to O'Dell's victims,  



                                                                                                                      

given that O'Dell did not claim that he was prejudiced by the State's delay.  



                                                                                                                              

                     In this appeal,  O'Dell contends that the superior court committed error  



                                                                                                                                  

when  the  court  relied  on  Criminal Rule  53  to  relax the  filing deadline  specified  in  



                                                                                                                                

Criminal Rule 32.6(c)(2).   Indeed, O'Dell essentially argues that Criminal Rule 53 can  



                                                                                                                 

never be employed to relax any deadline specified in the Criminal Rules.  



                                                                                                                       

                     O'Dell notes that another rule, Criminal Rule 40(b), specifically addresses  



                                                                                                                            

a court's authority to extend a time limit or to ratify an untimely act in situations where  



                                                                                                                                  

an act "is required or allowed to be done at or within a specified time" by a provision of  



                                                                                                                       

the Criminal Rules.  O'Dell argues that, because Criminal Rule 40(b) directly addresses  



                                                                                                                                  

these situations, it is unlawful for  a  court to employ Criminal Rule 53 (i.e., a rule of  



                                                                                                                       

broader application) to relax a filing deadline specified in the Criminal Rules.  



                                                               - 2 -                                                          2491
  


----------------------- Page 3-----------------------

                                               This argument is raised for the first time on appeal.                                                                                                                         Thus, to prevail, O'Dell                                    



must show that no reasonable judge could have thought that the law allowed the judge                                                                                                                                                                                                        



to relax the State's filing deadline under Criminal Rule 53.                                                                                                                                                  



                                               For the reasons explained in this opinion, O'Dell has not shown this.                                                                                                                                                                             We  



therefore reject O'Dell's claim that Criminal Rule 53 has no application to the filing                                                                                                                                                                                                       



deadline specified in Criminal Rule 32.6(c)(2).                                                                                                                      



                                               We also reject O'Dell's alternative argument that he was prejudiced by the                                                                                                                                                                            



 State's late filing because he had come to believe (during the months of delay) that even                                                                                                                                                                                                     



if the State ultimately filed a tardy restitution request, the superior court would deny the                                                                                                                                                                                                         



request because it was untimely.                                                                                   



                        Underlying facts   



                                               Christopher O'Dellpleaded                                                                      no contest to two                                           counts of second-degree theft  

                                                                                                                                                                                                                                                                                               1 and  

(for stealing property from a residence while a friend of his was house-sitting there)                                                                                                                                                                                                            



one count of third-degree weapons misconduct (for being a felon in possession of a  

                                                                                                                                                                                                                                                                                                          



                                                                                                                                                                                                                                                                                                   2  

concealable firearm - because there were four handguns among the stolen items).  

                                                                                                                                                                                                                                                                                                         



                                               At O'Dell's sentencing hearing in mid-December 2012, his attorney told  

                                                                                                                                                                                                                                                                                                  



the superior  court that O'Dell wanted to take responsibility for his offenses, and that  

                                                                                                                                                                                                                                                                                                 



O'Dell was willing to accept any sentence the court imposed.  A little later, when O'Dell  

                                                                                                                                                                                                                                                                                        



personally addressed the court during his allocution, O'Dell declared that even though  

                                                                                                                                                                                                                                                                                       



he was only one member of the group that stole the items from the residence, "[he]'d be  

                                                                                                                                                                                                                                                                                                       



willing to repay the entirety of the restitution owed to [the victims] if ... that would help  

                                                                                                                                                                                                                                                                                                 



            1           AS 11.46.130(a).
                                          



            2  

                                                                                             

                        AS 11.61.200(a)(1).
  



                                                                                                                                                 - 3 -                                                                                                                                           2491
  


----------------------- Page 4-----------------------

                                                                                                                                 

make them forgive [him]."  O'Dell also told the court that he "[would] be willing to do  



                                                                                                                        

whatever it takes" to prove that he was not the kind of person that his criminal conduct  



                             

indicated he was.  



                                                                                                                               

                     The superior court sentenced O'Dell to a term of imprisonment and also  



                                                                                           

ordered him to pay restitution in an amount to be set later.  



                                                                                                                           

                     This latter portion of O'Dell's sentence triggered the provisions of Alaska  



                                                                                                                                

Criminal Rule 32.6(c)(2).  This rule governs situations where either the amount of the  



                                                                                                                              

restitution or the proper recipients of the restitution are not known to the court at the time  



                                                                                                                             

of sentencing - meaning that the final restitution order can not be entered until after  



                                                                                                                     

sentencing.   Under this rule, the prosecutor has 90 days to file a proposed restitution  



                                                                                                                               

judgement that specifies the identity of the persons who should receive restitution, and  



                                                                                                  

that explains (and documents) the amount they should receive.  



                                                                                                                          

                     Because O'Dell's sentencingtook place in mid-December 2012, the 90-day  



                                                                                                                               

time  limit  in  Rule  32.6(c)(2)  gave  the  prosecutor  until mid-March  2013  to  file  the  



                                                                                                                              

proposed restitution judgement.  But the State did not file the proposed judgement until  



                      

October 7th.  



                                                                                                                                

                     Because the State's proposed judgement was almost seven months late, and  



                                                                                                                     

because O'Dell had apparently changed his mind about what he said at the sentencing  



                                                                                                                                      

hearing, O'Dell urged the superior court to deny the requested restitution in its entirety.  



                                                                                                                                

                     In response, the State attempted to explain its delay by pointing out that the  



                                                                                                                                

case against one of O'Dell's accomplices was not resolved until June 2013, and that the  



                                                                                                                             

victims  did  not  provide  the  State  with  the  full information  needed  to  support  their  



                                                                                                                                

restitution claim until August.  The State also asked the superior court either to relax the  



                                                               - 4 -                                                          2491
  


----------------------- Page 5-----------------------

filing deadline under Criminal Rule 40(b) because of the State's "excusable neglect"                                                                                                                           3  



                                                                                                                                                                                                              

or, alternatively, to invoke Criminal Rule 53 to relieve the State of its default because it  



                                                                                                                              

would be manifestly unjust to enforce the deadline.  



                                                                                                                                                                                                    

                                In O'Dell's reply to the State's pleading, he argued that the State had failed  



                                                                                                                                                                                                  

to show excusable neglect, and he also argued that enforcing the filing deadline would  



                                                              

not be manifestly unjust.  



                                                                                                                                                                                                   

                                The superior court ruled that the filing deadline should be relaxed under  



                                                                                                                                                                                                       

Criminal Rule 53.  In its written decision, the court expressed concern that the State was  



                                                                                                                                                                                                                  

repeatedly failing to honor the 90-day time limit established in Criminal Rule 32.6(c)(2).  



                                                                                                                                                                                                     

The court also noted that it had recently sustained a defendant's objection to a late filing  



                                               

in a different case.  



                                                                                                                                                                                         

                                However,  the  court  relaxed  the  deadline  and  granted  the  proposed  



                                                                                                                                                                                               

restitution in O'Dell's case.   The court concluded that the time limit should be relaxed  



                                                                                                                                                                                                           

under  Criminal Rule 53 because it would be manifestly unjust to deny recovery  to  



                                                                                                                                                                                                

O'Dell's victims, given that O'Dell did not claim that he was prejudiced by the State's  



                 

delay.  



                                                                                                                                                         

                                O'Dell now appeals the superior court's decision.  



        3       Alaska Criminal Rule 40(b)(2) states that a court may, upon motion, "permit [an] act                                                                                                      



to be done after the expiration of the specified period [for doing it] if the [party's] failure to                                                                                                          

act was the result of excusable neglect".                                                     (Rule 40(b) lists certain deadlines that can not be                                                          

extended under the rule, but none of them are pertinent here.)                                                                                



                                                                                                   - 5 -                                                                                               2491
  


----------------------- Page 6-----------------------

                       O'Dell's argument that Criminal Rule 53 can never be employed to relax                                                                                                                                                               

                       a filing deadline if Criminal Rule 40(b) applies                                                                                          



                                             O'Dell's primary argument on appeal is that the superior court committed                                                                                                                                           



legal error by invoking Criminal Rule 53 as the court's authority for relaxing the filing                                                                                                                                                                                          



deadline set by Criminal Rule 32.6(c)(2).                                                                                                   



                                             O'Dell notes that Criminal Rule 40(b) specifically addresses the issue of                                                                                                                                                                      



when, and whether, a court should relax a filing deadline specified in the Criminal Rules.                                                                                                                                                                                                             



O'Dell then notes that there is a canon of statutory construction that, when there is a                                                                                                                                                                                                        



statute or rule that specifically addresses a subject, the provisions of that specific statute                                                                                                                                                                               



or rule should be interpreted as taking precedence over the provisions of a more general                                                                                                                                                                                   



                                                                                                                                                  4  

statute or rule that also covers that subject.                                                                                                         



                                             Relying on this canon of statutory construction, O'Dellargues that the more  

                                                                                                                                                                                                                                                                                   



stringent provisions of Criminal Rule 40(b) must take precedence over the provisions of  

                                                                                                                                                                                                                                                                                             



Criminal Rule 53 - even when a court concludes that a strict application of Criminal  

                                                                                                                                                                                                                                                                      



Rule 40(b) will lead to manifest injustice.  

                                                                                                                                            



                                             If we were writing on a blank slate, O'Dell's argument might be plausible.  

                                                                                                                                                                                                                                                                                                       



But we are not.  The Alaska Supreme Court has already addressed this issue.  In Thomas  

                                                                                                                                                                                                                                                                         



v. State, 566 P.2d 630, 638-39 (Alaska 1977), the supreme court held that CriminalRule  

                                                                                                                                                                                                                                                                                    



53 authorizes trial courts to relax time limits in instances of manifest injustice even when  

                                                                                                                                                                                                                                                                                 



the relaxation would not be allowed under Criminal Rule 40(b).  

                                                                                                                                                                                                                       



                                             The specific question presented in Thomas was whether the superior court  

                                                                                                                                                                                                                                                                                  



could invoke Criminal Rule 53 to relax the 60-day time limit established for motions to  

                                                                                                                                                                                                                                                                                             



modify a sentence under a former version of Criminal Rule 35(a).  The State, in opposing  

                                                                                                                                                                                                                                                                      



the defendant's late-filed motion to modify, made the very same argument that O'Dell  

                                                                                                                                                                                                                                                                            



           4           See Smith v. State                                        , 229 P.3d 221, 226 & n. 3 (Alaska App. 2010).                                                                                                           



                                                                                                                                           - 6 -                                                                                                                                      2491
  


----------------------- Page 7-----------------------

                                                                                                                         

is making here:  that Criminal Rule 40(b)  expressly addresses the subject of relaxing  



                                                                                                                            

filing deadlines, so the provisions of Rule 40(b) must take precedence over  the more  



                                                                        

general authority granted by Criminal Rule 53:  



                      

                                                                                                           

                    The   state   takes   the   position   that   the   prohibitions   on  

                                                                                                             

                    enlargement of time for a Rule 35(a) motion contained in  

                                                                                                   

                    Criminal Rule  40(b)  supersede  the  provisions  of  Criminal  

                                                                                                           

                    Rule 53, since Criminal Rule  53 is a general provision and  

                                                                                                           

                    Criminal Rule 40(b) refers specifically to Rule 35 as to any  

                                                                                                          

                    possible exceptions to the prohibition on enlargement of time  

                                                  

                    under Rule 35(a).  



                                                                                        

And here is how the supreme court answered the State's argument:  



                      

                                                                                                          

                               We ... take this occasion to reiterate our holding that  

                                                                                                        

                    Criminal Rule 53 is applicable to Rule 35(a) motions.                              More  

                                                                                                           

                     specifically, we hold that where a showing of injustice has  

                                                                                                 

                    been  made   under  Rule  53,  the  60-day  time  limitation  

                                                                                                              

                    contained in Rule 35(a) for bringing a motion to reduce a  

                                                                                                             

                     sentence  may  be  dispensed  with  or  relaxed.  Rule  53  is  

                                                                                                        

                     intended to apply to any of Alaska's Criminal Rules in order  

                                                                                                   

                     to insurethat strict adherence to one or more of our Criminal  

                                                                                                           

                    Rules of Procedure will not result in manifest injustice to any  

                    party.    



                                                              

Thomas, 566 P.2d at 638-39 (emphasis added).  



                                                                                                                          

                    In his brief to this Court, O'Dell acknowledges that the supreme court's  



                                                                                                                                  

decision in Thomas appears to reject his argument.  But O'Dell contends that Thomas is  



                                               

distinguishable from his case.  



                                                                                                                    

                    O'Dell notes that Thomas involved the relaxation of a time limit established  



                                                                                                                           

by former Criminal Rule 35(a) - an issue on which there was already case law (Jones  



                                                               - 7 -                                                          2491
  


----------------------- Page 8-----------------------

                                                                                                                                 

v. State, 548 P.2d 958 (Alaska 1976)) - while O'Dell's case involves the relaxation of  



                                                                                                          

a time limit established by a different rule, Criminal Rule 32.6(c)(2).  



                                                                                                                                

                    There  is  no  binding  precedent  directly  addressing  the  application  of  



                                                                                                                                      

Criminal Rule 53 to the time limit for restitution requests codified in Rule 32.6(c)(2).  



                                                                                                                               

But O'Dell argues that this Court's unpublished opinion in Osborne v. State, 2014 WL  



                                                                                                                                 

3408410 (Alaska App. 2014), supports his position that Rule 53 can not be applied to  



                                                                        

relax the deadline specified in Rule 32.6(c)(2).  



                                                                                                                          

                     (Although Osborne is a memorandum opinion, and is therefore not binding  



                                                                                                                                  

precedent, O'Dell is allowed to rely on Osborne for its persuasive value.  See McCoy v.  



                                                                                                                          

State  (opinion  on  rehearing),  80  P.3d  757,  764  (Alaska  App.  2002),  and  Alaska  



                        

Appellate Rule 214(d)(1).)  



                                                                                                                                

                    In  Osborne,  the  superior court relied on Criminal Rule 53 to relax the  



                                                                                                                            

State's  filing deadline  for  a  restitution  request.                        We  noted  that  the  superior  court  



                                                                                                                                

"excused the State's late filing in the interest of justice under Criminal Rule 53", but we  



                                                                                                                              

noted that "the rule that directly governs this situation is Criminal Rule 40."  2014 WL  



                                                                                                                               

3408410 at *2.  We went on to conclude that, under the facts, the State's late filing was  



                                                                                          

excusable under the provisions of Criminal Rule 40(b)(2).  Ibid.  



                                                                                                                                  

                    O'Dell argues that Osborne stands for the proposition he is advancing in  



                                                                                                                        

this appeal - that Criminal Rule 53 can not be used to relax a filing deadline if Criminal  



                                                                                                 

Rule 40(b)(2) applies.  But O'Dell reads Osborne too broadly.  



                                                                                                                                

                     Osborne  supports  the  proposition  that  a  trial court  should  not  rely  on  



                                                                                                                                

Criminal Rule 53 to relax a filing deadline if that same result can be reached under the  



                                                                                                                                  

provisions of the more specific rule, Criminal Rule 40.  Because the State's tardiness in  



                                                                                                                                 

Osborne was excusable under Criminal Rule 40, there was no need for this Court  to  



                                                                                                                                  

reach the question we now confront in O'Dell's case:   whether Criminal Rule 53 is  



                                                                                                  

available if a late filing is not excusable under Criminal Rule 40.  



                                                               - 8 -                                                          2491
  


----------------------- Page 9-----------------------

                                                                                                                        

                     The  supreme court's decision in  Thomas expressly states that Criminal  



                                                                                                                                

Rule 53 "is intended to apply to any of Alaska's Criminal Rules in order to insure that  



                                                                                                                              

strict adherence to [those rules] will not result in manifest injustice".  Thomas, 566 P.2d  



                                                                                                                          

at 639 (emphasis added).  We therefore conclude that the superior court did not commit  



                                                                                                                                

plain  error  in  O'Dell's  case  when  it  invoked  Criminal Rule  53  as  its  authority  for  



                                                                                                       

relaxing the 90-day filing deadline set by Criminal Rule 32.6(c)(2).  



                                                                                                                       

          O'Dell's argument that he was prejudiced by the State's delay in filing the  

                            

          restitution request  



                                                                                                                                 

                     As an alternative argument, O'Dell asserts that he was prejudiced by the  



                                                                      

State's delay in filing the restitution request.  



                                                                                                                                

                     However, O'Dell does not assert that he was "prejudiced" in the sense that  



                                                                                                                                  

the State's delay hampered his ability to dispute the specifics of the restitution claim, or  



                                                                                                                                

in the sense that he disposed of his income or assets in detrimental reliance on the fact  



                                                                                                     

that the State had apparently decided not to press for restitution.  



                                                                                                                        

                     Rather,  O'Dell's  claim  of  prejudice  is  based  on  the  fact  that  O'Dell's  



                                                                                                                                       

attorney falsely raised his hopes that he would not have to pay  restitution after all.  



                                                                                                                              

(O'Dell's attorney apparently told him, mistakenly, that the State's long delay in filing  



                                                                                                                                  

the restitution request meant that the State would be barred from seeking restitution.)  In  



                                                                                                                              

such circumstances, O'Dell asserts, "having to pay the [restitution]  judgment is itself  



                     

prejudicial."  



                                                                                                                        

                     O'Dell made this same argument to the superior court - that his thwarted  



                                                                                                                         

expectation of escaping restitution altogether constituted "prejudice".  But the superior  



                                                                                                                                 

court apparently rejected  O'Dell's legal characterization of the situation, because the  



                                                                                                             

superior court's order states that O'Dell failed to show any prejudice.  



                                                               - 9 -                                                          2491
  


----------------------- Page 10-----------------------

                                                                                                                                

                     We agree with the superior court that O'Dell's false hopes regarding this  



                                                                                                                          

matter, and O'Dell's subsequent disappointment when the court accepted the State's  



                                                                                                                             

tardy  restitution  request,  do  not  constitute  legally  cognizable  "prejudice"  for  these  



                  

purposes.  



                                                                                                             

          A  final  note  on  potential  methods  for  enforcing  the  90-day  deadline  

                                                     

          codified in Criminal Rule 32.6(c)(2)  



                                                                                                                              

                     There are good reasons why Criminal Rule 32.6(c)(2) specifies a filing  



                                                                                                                                  

deadline for restitution requests, and there are good reasons why this deadline should be  



                 

enforced.  



                                                                                                                               

                     This deadline imposes a duty on prosecutors, so that a crime victim's right  



                                                                                                                           

to restitution does not go unattended.  But the deadline also exists for the court's benefit  



                                                                                                                     

as well - because,  until the State files its proposed restitution order and supporting  



                                                                                                                                

documentation, and until the proposed restitution is litigated, the court's judgement will  



                                          

not be final in all respects.  



                                                                                                                        

                     But  as  O'Dell  points  out  in  his  brief,  there  is  currently  no  effective  



                                                                                                                           

mechanism for enforcing this deadline.  We agree with O'Dell that it is unfair to require  



                                                                                                                          

the  defendant  to  police  this  deadline  by  warning  the  court,  or  seeking the  court's  



                                                                                                                           

intervention,  when  the  filing deadline  is  on  the  brink  of  expiring.                                Although  timely  



                                                                                                                                 

resolution of restitution may also benefit the defendant, the primary beneficiary is the  



                                                                                                                                

crime victim - and, thus, the primary responsibility for meeting the filing deadline falls  



                               

on the prosecutor.  



                                                              -  10 -                                                         2491
  


----------------------- Page 11-----------------------

                        The prosecutor bears this responsibility because restitution presents                                                          an  



                                                                                           5                   6  

unusual situation - a situation where,                                   by statute                                                              

                                                                                              and rule,   the  prosecutor's office  



                                                                                                                                                     

represents the interests of private third-parties (i.e., crime victims).  One might hope that  



                                                                                                                                                     

crime victims could rely on the prosecutor's office to faithfully perform this role.  But  



                                                                                                                         7  

                                                                                                              

crime victims have limited leverage when the process breaks down.  



                        One approach courts might take would be to have someone in the Court  

                                                                                                                                                  



System - for example, the clerk's office, or the judges' judicial assistants - keep track  

                                                                                                                                                   



of the number of days elapsed since the original entry of judgement in all cases where  

                                                                                                                                                 



the amount of restitution is left unresolved.  The sentencing judge could then be alerted  

                                                                                                                                                



if the deadline in a particular case was approaching and no proposed restitution order had  

                                                                                                                                                      



been received - so that the judge could take action to elicit the restitution proposal from  

                                                                                                                                                   



the State (or a motion to extend the deadline) in a timely fashion.  

                                                                                                                      



            Conclusion  



                        The judgement of the superior court is AFFIRMED.  

                                                                                                                        



      5     AS   12.55.045.   



      6     Alaska  Criminal  Rules  32.1(g)  and  32.6.   



      7     We  note  that  the  legislature  has  expressly  exempted  the  prosecutor's  office  from  civil  



liability  for  failing  to e   nforce  a  judgement  of  restitution.   See  AS   12.55.051(i).   



                                                                         - 11 -                                                                     2491
  

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