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Municipality of Anchorage v. Beezley (8/17/2018) ap-2614

Municipality of Anchorage v. Beezley (8/17/2018) ap-2614

                                                    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  



MUNICIPALITY OF ANCHORAGE,  

                                                                   Court of Appeals No. A-12850  

                                    Petitioner,                  Trial Court No. 3AN-16-2755 CR  



                           v.  

                                                                            O  P  I  N  I  O  N 

WAYNE EDWARD BEEZLEY,  



                                    Respondent.                      No. 2614 - August 17, 2018  



                  Petition  for  Review  from  the  District  Court,  Third  Judicial  

                                                      

                  District, Anchorage, Douglas Kossler, Judge.  



                  Appearances: Sarah E. Stanley, Assistant Municipal Prosecutor,  

                                                           

                  and William D. Falsey, Municipal Attorney, Anchorage, for the  

                                   

                  Petitioner.      No   appearance   for   the   Respondent.      Renee  

                  McFarland,  Assistant  Public  Defender,  and  Quinlan  Steiner,  

                                                                       

                  Public Defender, Anchorage, for amicus curiae Alaska Public  

                                                                                 

                  Defender Agency.  



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

                                                       

                  Judges.  



                  Judge MANNHEIMER.  


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

                       The defendant in this case, Wayne Edward Beezley, stands accused of the                                                     



                                                                                         1  

Anchorage municipal offense of reckless driving.                                                                                     

                                                                                             Under the Anchorage Municipal  



                                                                                                                                            2  

                                                                                                                                                

Code, a person convicted of reckless driving may be imprisoned for up to 1 year.                                                               This  



                                                                                                                                        

 1-year maximum penalty was established at a time when the maximum penalty provided  



                                                                                                                                                  

for class A misdemeanors under state law was also 1 year's imprisonment.  See the  



                                                                      

pre-2016 version of AS 12.55.135(a).  



                                                                   

                       But in 2016, the Alaska legislature modified AS 12.55.135(a) so that not  



                                                                                                                                         3  

                                                                                                                                             

all class A misdemeanor offenders are subject to the 1-year maximum sentence.                                                               Under  



                                                                                                                                                    

the current version of the statute, the 1-year maximum sentence applies only if one or  



                                                                                                    4 

                                                                                                                                                  

more of the criteria listed in AS 12.55.135(a)(1) are met.    If none of these criteria are  



      1     Anchorage Municipal Code (AMC)  09.28.010.A.  



      2     AMC  09.48.010.D.2.  



      3     See SLA 2016, chapter 36,  91.  



      4     Under  the  current  version  of   AS  12.55.135(a)(1),  a  sentence  of   up  to  1  year's  



imprisonment can be imposed for a class A misdemeanor if:   



            (A) the conviction is for a crime with a mandatory minimum term of 30 days or more  

                                                                                                                              

                                                                                                

      of active imprisonment;  



            (B)  the trier of fact finds the aggravating factor that the conduct constituting the  

                                       

      offense was among the most serious conduct included in the definition of the offense;  



            (C) the defendant has past criminal convictions for conduct violative of criminal laws  

                                                                                                                                  

      ... similar in nature to the offense for which the defendant is being sentenced;  



            (D) the conviction is for an assault in the fourth degree under AS 11.41.230; or  



            (E) the conviction is for a violation of (i) AS 11.41.427, or (ii) AS 11.41.440, or  

                                                                                

      (iii) AS 11.41.460, if the indecent exposure is before a person under 16 years of age, or  

                                                                                                                                             

      (iv) AS 11.61.116(c)(2), or (v) AS 11.61.118(a)(2).  



                                                                       - 2 -                                                                   2614
  


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

met, then the maximum sentence for a class A misdemeanor is 30 days' imprisonment.  

                                                                                                                                     



See AS 12.55.135(a)(2).  

                                       



                    In essence, the  legislature created a presumptive sentencing ceiling of  

                                                                                                                                



30 days' imprisonment for most class A misdemeanors - a ceiling that cannot be  

                                                                                                                                



exceeded unless the State proves one of the factors listed in subsection (a)(1) of the  

                                                                                                                               



statute.  

             



                    Even though the municipal offense of reckless driving is not a "class A  

                                                                                                                                 



misdemeanor", the district court ruled that the presumptive 30-day sentencing ceiling  

                                                                                                                          



codified in AS 12.55.135(a) governs Beezley's sentencing for reckless driving under  

                                                                                                                           



municipal law.  That is, the district court ruled that Beezley's sentence could not exceed  

                                                                                                                          



30 days' imprisonment unless the Municipality proved one of the factors set forth in  

                                                                                                                                 



AS 12.55.135(a)(1).  

                                 



                    The Municipality has petitioned us to reviewand reverse the district court's  

                                                                                                                          



ruling.   When Beezley's court-appointed attorneys, the Denali Law Group, filed no  

                                                                                                                                



response to the Municipality's petition, we invited the Alaska Public Defender Agency  

                                                                                                                        



to enter this case as an amicus curiae to argue Beezley's position.  And because the  

                                                                                                                               



district court's rationale apparently applies to State prosecutions for reckless driving  

                                                                                                                         



under AS 28.35.400, we invited the State of Alaska to file an amicus curiae brief as well  

                                                                                                                              



- an invitation that the State declined.  

                                                             



                    For the reasons explained in this opinion, we agree with the district court  

                                                                                                                            



that the presumptive 30-day sentencing ceiling established in AS 12.55.135(a) applies  

                                             



to a sentencing for reckless driving under Anchorage municipal law.  

                                                                                                          



                                                              -  3 -                                                         2614
  


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

          A more detailed examination of the legal background of this case  

                                                                                                        



                    As we explained earlier, the legislature has amended AS 12.55.135(a)  

                                                                                                                



so that not all defendants convicted of a class A misdemeanor are subject to a 1-year  

                                                                                                                          



maximum  term  of  imprisonment.                        There  is  now  a  presumptive  30-day  ceiling  on  

                                                                                                                                



sentencing for most class A misdemeanors unless the State proves one of the factors  

                                                                                                                          



listed in subsection (a)(1) of the statute.  

                                                               



                    The problem in Beezley's case arises from the fact that AS 12.55.135(a)  

                                                                                                                



addresses only the penalties for misdemeanor offenses that are classified as "class A"  

                                                                                                                                



misdemeanors, and there are many misdemeanors defined under state and municipal law  

                                                                                                                               



that have no classification.  

                                          



                    All  of  the  misdemeanor  offenses  defined  in  our  state's  criminal  code  

                                                                                                                            



(Title  11  of  the  statutes)  are  explicitly  designated  as  either  class  A  or  class  B  

                                                                                                                       



misdemeanors, so the application of AS 12.55.135(a) is clear with respect to these  

                                                                                                           



crimes:  the statute applies to class A misdemeanors, and it does not apply to class B  

                                                                                                                                 



misdemeanors.  

                          



                    But there are other misdemeanor offenses defined in titles other than Title  

                                                                                                                             



11, and (as we are about to explain) many of these misdemeanors are neither class A nor  

                                                                                                                               



class B.  Instead, they are non-classified.  

                                                                 



                    There is a provision of the criminal code, AS 11.81.250(c), which declares  

                                                                                                                        



that a misdemeanor defined in a title of the statutes other than Title 11 is deemed a  

                                                                                                                                  



class A misdemeanor if the other title does not specify a penalty for that misdemeanor.  

                                                                                                                                     



                    But AS 11.81.250(c) does not cover the many misdemeanors in other titles  

                                                                                                                             



of the statutes which are not designated as class A or class B, but which do have a  

                                                                                                                                  



specified penalty.  For instance, many misdemeanors defined in Title 28 of our statutes  

                                                                                                                         



(motor vehicles) are not designated as class A or class B, but these misdemeanors have  

                                                                                                                             



                                                              - 4 -                                                          2614
  


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

a specified penalty - because Title 28 contains a general provision, AS 28.90.010,                                                                                                                                                                                                               



which establishes the penalty for all violations of Title 28 (unless a different penalty is                                                                                                                                                                                                                                         



specified   in   the   criminal   statute   itself).     The   state   offense   of   reckless   driving,  



AS 28.35.400, falls within this non-classified category:  it is not designated as either a                                                                                      



class A or class B misdemeanor, but it has a specified penalty.                                                                                                                                                                                   



                                                    See   also   AS   16.05.430,   AS   16.05.665,   AS   16.05.723,   AS   16.05.783,  



AS 16.05.831, and AS 16.05.905 - all of which specify penalties for misdemeanor fish                                                                                                                                                                                                                                         



and   game   offenses,   without   designating  them as                                                                                                                                             either   class   A   or   class   B.     These  



offenses, too, are all non-classified misdemeanors.                                                                                                                                                  



                                                    Similarly, Title 09 of the Anchorage Municipal Code contains numerous                                                                                                                                                                            



offenses  which  carry   penalties   of   up   to   1   year's   imprisonment,   but   which   are   not  



designated as either class A or class B misdemeanors.                                                                                                                                                          These municipal misdemeanors                                        



are likewise non-classified.                                                                               



                                                   The defendant in this case, Wayne Edward Beezley, is accused of one such                                                                                                                                                                                               



                                                                                                                                                                                                                                                                     5  

municipal misdemeanor:                                                                           the municipal offense of reckless driving.                                                                                                                               



                                                                                                                                                                                                                                                                                 

                          The  relationship  between  the  penalty  for  the  state  offense  of  reckless  

                                                                                                                                                                                                                                                                  

                          driving and the penalty for the municipal offense of reckless driving  



                                                                                                                                                                                                                                                                                                 

                                                   In Alaska, home rule municipalities such as the Municipality of Anchorage  



                                                                                                                                                                           6  

                                                                                                                                                                                                                                                                                          

are authorized to enact their own traffic laws.                                                                                                                                   The State of Alaska and the Municipality  



             5            AMC  09.28.010.A.  



             6            See  AS 29.04.010: "A home rule municipality                                                                                                                         is a municipal corporation and political  



subdivision.  It is a city or a borough that has adopted a home rule charter, or it is a unified   

municipality.  A home rule municipality has all legislative powers not prohibited by law or                                                                                                                                                                                                                         

charter."  



                                                                                                                                                             -  5 -                                                                                                                                                        2614
  


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

of Anchorage have each enacted provisions that prohibit reckless driving: AS 28.35.400  

                                                                                                                      



and AMC  09.28.010.  

                                       



                    However, AS 28.01.010(a) declares that "a municipality may not enact [a  

                                                                                                                                  



motor vehicle] ordinance that is inconsistent with the provisions of [Title 28 of the  

                                                                                                                                



Alaska Statutes] or the regulations adopted under [that] title."  And AS 29.25.070(g)  

                                                                                                                 



declares that whenever a municipality proscribes conduct by ordinance, and there is a  

                                                                                                                                   



comparable state crime defined in Title 11 or Title 28 of the statutes, "the municipality  

                                                                                                                  



may not impose a greater punishment than that imposed for a violation of the state  

                                                                                                                              



crime."  

              



                    Because of these statutes, a municipality may not enact penalty provisions  

                                                                                                                     



for traffic offenses that exceed the penalties for the corresponding state traffic offenses  

                                                                                                                        



(unless the Alaska legislature has otherwise expressly authorized the deviation).  

                                                                                                           



                    In its brief to this Court, the Municipality of Anchorage assumes that the  

                                                                                                                                



state offense of reckless driving and the municipal offense of reckless driving are equally  

                                                                                                                          



governed - or equally not governed - by the presumptive 30-day sentencing ceiling  

                                                                                                                           



codified in AS 12.55.135(a).  Indeed, in many portions of its brief, the Municipality  

                                                                                                                 



discusses the state reckless driving statute, AS 28.35.400, as if Beezley had been charged  

                                                                                                                         



under that statute.  

                             



                    We take the Municipality's briefing of this issue as an acknowledgement  

                                                                



that if the presumptive 30-day sentencing ceiling codified in AS 12.55.135(a) applies to  

                                                                                                                                  



the state offense of reckless driving, then the ceiling also applies to the municipal offense  

                                                                                                                          



of reckless driving.  

                                



                                                               -  6 -                                                         2614
  


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

             Why   we   conclude   that   the   presumptive   sentencing   ceiling   established  

            in AS 12.55.135(a) applies to the non-classified misdemeanor of reckless                                               

            driving  



                        Even though the language of AS 12.55.135(a) speaks only of class A  

                                                                                                                                                          



misdemeanors,  Alaska  does  not  adhere  to  the  "plain  meaning"  rule  of  statutory  

                                                                                                                                             



construction.               Rather,  Alaska uses a "sliding scale" analysis that allows  a court to  

                                                                                                                                                         



consider thelegislature's intentwhen interpreting astatute, even when theliteralwording  

                                                                                                                                               

of the statute apparently conflicts with that intent. 7  

                                                                                               



                                                                                                                                                          

                        The  2016  amendment  to  AS  12.55.135(a)  was  only  one  part  of  a  



                                                                                                                                        

comprehensive revision of our criminal statutes: see SLA 2016, chapter 36, colloquially  



                                                                                                                                         

known as "Senate Bill 91".  For this reason, the Public Defender Agency urges us to  



                                                                                                                                        

interpret AS 12.55.135(a) broadly, in light of the legislature's overarching motivations  



                                                                                                                                                         

for enacting Senate Bill 91.   According to the Public Defender Agency, it would be  



                                                                                                                                                         

consistent with the broad purposes of Senate Bill 91 to interpret AS 12.55.135(a) as  



                                                                                                                                    

applying to all major misdemeanors  - both class A misdemeanors and non-classified  



                                                                                                                                                           

misdemeanors - even though the statute itself refers only to class A misdemeanors.  



                                                                                                                                                       

                        More specifically, the Public Defender Agency points out that Senate Bill  



                                                                                                                                                

91  was  the  product  of  recommendations  issued  by  the  Alaska  Criminal  Justice  



                         8  

Commission.                                                                                                                                            

                               The  Commission  found,  based  on  prison  population  data  for  the  



                                                                                                                                                      

precedingdecade, that "incarceration[was no]moreeffectiveat reducing recidivismthan  



      7     See, e.g., State v. Fyfe, 370 P.3d 1092, 1094-95 (Alaska 2016).  



      8     See the sponsor statement of Senator John Coghill for Senate Bill 91, version N (29th   



Legislature), February 10, 2016.   



                                                                          -  7 -                                                                     2614
  


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

non-custodial sanctions" - that, indeed, for low-level offenders, sending them to prison                                                                                                            



                                                                                                          9  

seemingly  increased  the rate of recidivism.                                                                  



                                                                                                                                                                        

                                Based on these findings, the Commission issued several recommendations  



                                                                                                                                                                                                           

whose purpose was to try to ensure that Alaska's prison space was reserved mainly for  



                                                                                         10  

                                                                                                                                                                                   

                                                                                                 One way to accomplish this, the Commission  

violent and other serious offenders.  



                                                                                                            

noted, was to limit the use of imprisonment as punishment for low-level misdemeanor  



                          11  

                                                                                                                                                                                       

offenders.                           And  one  of  the  Commission's  specific  proposals  was  to  reduce  



                                                                                                                                                                                                      

the  sentencing  range  for  non-aggravated  class  A  misdemeanors  to  no  more  than  



                      12  

                                                                                                                                                                                                            

30  days                    -  a  proposal  that  was  ultimately  embodied  in  the  current  version  of  



                                            

AS 12.55.135(a).  



                                                                                                                                                                                                           

                                But in the discussions surrounding AS 12.55.135(a), the legislature did not  



                                                                                                                           

address the non-classified misdemeanors codified in titles of the Alaska Statutes other  



                                                                     

than Title 11.  The majority of the legislative discussion focused on identifying which  



                                                                                                                                                                                                 

class A misdemeanors defined in Title 11 would be exempted from the new 30-day  



                                               13  

                                                    

sentencing ceiling.  



        9       See Alaska Criminal Justice Reinvestment Report (2015), pp. 8-9.  



        10      Id. , p. 14.  



        11      Id. , p. 18.  



        12      Id. , pp. 18-19.  



        13      See   the statement of Daniel George (staff to Sen. Bill Stoltze) to the Senate State                                                                                                 



Affairs Committee on March 1, 2016 @ 8:53:30 - 8:54:00; the statement of Jordan Schilling                                                                                    

(staff to Sen. John Coghill) to the House Judiciary Committee on April 11, 2016 @ 1:18:45 -                                                                                                   

 1:19:05; the statement of Sen. Coghill to the House Finance Committee on April 20, 2016   

@ 8:41:50 - 8:42:11; and the statement of Jordan Schilling to the House Finance Committee        

on April 26, 2016 @ 5:36:29 - 5:36:55.   



                                                                                                   -  8 -                                                                                               2614
  


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

                    Even though this legislative history indicates that the legislature failed to  

                                                                                           



expressly consider the non-classified misdemeanors codified in other titles of the Alaska  

                                                                                                                           



statutes, the Public Defender Agency argues that the legislature's purpose in revising  

                                                                                                                        



AS 12.55.135(a) is obvious:  according to the Agency, the presumptive 30-day ceiling  

                                                                                                                           



for most misdemeanor sentences was intended to reduce the number of people sent to jail  

                                                                                                                                 



for non-aggravated misdemeanors, to reduce the amount of time these offenders spent  



in jail, and to encourage sentencing judges to actively consider non-prison sentencing  

                                                                                                                     



alternatives.  

                      



                    This may all be true, but it is no easy task to map AS 12.55.135(a)'s  

                                                                                                              



presumptive 30-day sentencing ceiling onto all the non-classified misdemeanors in the  

                                                                                                                                



other titles of the Alaska statutes.   Some of these non-classified misdemeanors have  

                                                                                                                              



1-year maximum penalties; some have 6-month maximum penalties; some have 90-day  

                                                                                                                           



maximum penalties.  And the great majority of these non-classified misdemeanors deal  

                                                                                                                               



with areas of activity that have their own special policies and regulatory needs - for  

                                                                                                                                 



example, the motor vehicle offenses found in Title 28, the fish and game offenses found  

                                                                                                                            



in Title 16, and the business and professions offenses found in Title 8.  

                                                                                                             



                    But to resolve Beezley's case, the only issue we need to decide is whether  

                                                                                                                         



the  presumptive  30-day  sentencing  ceiling  applies  to  the  non-classified  offense  of  

                                                                                                                                 



reckless driving.  

                            



                    As defined in AS 28.35.400(a), a person commits the crime of reckless  

                                                                                                                         



driving  if  they  drive  a  motor  vehicle  "in  a  manner  that  creates  a  substantial  and  

                                                                                                                               



unjustifiable risk of harm to a person or to property". This statute does not require proof  

                                                                                                                             



that anyone (or anything) was injured by the defendant's act of driving; the creation of  

                                                                                                                                  



the risk is sufficient.  

                                  



                                                               -  9 -                                                         2614
  


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

                       In contrast, several class A misdemeanors require proof of actual injury to                                                 



                                                     14  

persons or damage to property.                                                                                                            

                                                         It is questionablewhether the legislature would impose  



                                                                                                                                                   

a presumptive 30-day ceiling on the sentences for these class A misdemeanors while, at  



                                                                                                                              

the same time, deciding to allow unrestricted sentencing of up to 1 year's imprisonment  



                                                                                                                                   

for an act of recklessness that does not result in injury or property damage.  



                                                                                                                                          

                       In this same vein, we note that the class A misdemeanor offense of driving  



                                                                                                                                               

under the influence, AS 28.35.030(a), is normally viewed as a more serious offense than  



                                                                                                                                           

reckless driving.   Even though both offenses carry a maximum sentence of 1 year's  



                                                                                                                                                  

imprisonment, the offense of driving under the influence has a structured series of  



                                                                                                                                              

mandatory minimum sentences (depending on the offender's criminal history).  And  



                                                                                                                                                  

under Alaska law, the offense of reckless driving is often a lesser included offense of  



                                                 15  

                                                       

                                

driving under the influence.  



                                                                                                                                    

                       Because misdemeanor driving under the influence is expressly designated  



                                               16  

as a class A misdemeanor,    it is subject to the presumptive 30-day sentencing ceiling  



                                                                                                                                        

codified in AS 12.55.135(a).  Thus, if this 30-day ceiling did not also apply to reckless  



                                                                                                                                              

driving, this lesser offense would effectively carry a greater maximum penalty than  



                                                                          17  

                                                                               

misdemeanor driving under the influence.  



      14    See,      e.g.,      AS      11.46.430(a)             (second-degree               criminally          negligent          burning);  



AS  11.46.484(a)(1)  (fourth-degree  criminal  mischief);  AS  11.51.100(a)  (first-degree  

endangering the welfare of a child).  



      15  

                                                                                                                                                

            See Bertilson v. State, 64 P.3d 180, 183 (Alaska App. 2003); Comeau v. State, 758  

P.2d 108, 114 (Alaska App. 1988).  



      16    See AS 28.35.030(b).  



      17  

                                                                                           

            See Wayne R. LaFave, Jerold H. Israel, Nancy J. King, and Orin S. Kerr, Criminal  

                    

Procedure (4th ed. 2015),  24.8(e), Vol. 6, p. 648 & n. 99 (discussing the rule followed in  

                                                                                                                                        

some jurisdictions that a lesser included offense must carry no greater penalty than the  

                                                                                                                               (continued...)  



                                                                      -  10 -                                                                2614
  


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

                                       In analogous circumstances,wheretheliteralwordingofsentencingstatutes                                                                                                                             



would lead to illogical discrepancies between the sentence for a more serious crime and                                                                                                                                                             



the sentence for a less serious one, this Court has interpreted the sentencing statutes in                                                                                                     



a manner that eliminates the sentencing incongruity. For example, in                                                                                                                                   Pruett v. State                          , 742   



P.2d 257 (Alaska App. 1987), this Court reconciled sentencing statutes which imposed                                                                                                                                                  



a 5-year presumptive term of imprisonment for manslaughter but which imposed                                                                                                                                                                               a  



greater punishment (a 7-year presumptive term) for the less serious crime of first-degree                                                                                                                                    



assault (  i.e., inflicting serious physical injury).                                                                                    We held that sentencing for first-degree                                            



assault   had   to   be   governed   by   the   same   5-year   presumptive   term   that   applied  to  



                                            18  

manslaughter.                                     



                                                                                                                                                                                                                                             

                                       Likewise, in Smith v. State, 28 P.3d 323 (Alaska App. 2001), this Court  



                                                                                                                                                                                                                                                     

reconciled   sentencing   statutes   which   imposed   a   5-year   presumptive   term   of  



                                                                                                                                                                                                                                             

imprisonment for manslaughter but which imposed a greater presumptive term (7 years)  



                                                                                                                                                                                                                     

for the less serious offense of first-degree weapons misconduct - i.e., discharging a  



                                                                                                                                                                                                                                                      

firearm from a moving vehicle, even if the discharge did not injure anyone.  Again, we  



                                                                                                                                                                                                                                                     

held that the presumptive term of imprisonment for the less serious offense could not  



                                               19  

                                                     

exceed 5 years.  



                                                                                                                                                                                                                                                

                                       As in Pruett  and Smith, we conclude that the legislature could not have  



                                                                                                                                                                                                                           

intended to create the sentencing discrepancy that would exist if the 30-day presumptive  



                                                                                                                                                                                                                                       

sentencing ceiling applied to driving under the influence but did not apply to reckless  



                         

driving.  



          17        (...continued)  



charged offense).  



          18       Pruett, 742 P.2d at 262-63.  



          19        Smith, 28 P.3d at 326.  



                                                                                                                       -  11 -                                                                                                                    2614
  


----------------------- Page 12-----------------------

                    We therefore conclude that the presumptive 30-day sentencing ceiling  

                                                                                                                      



codified in AS 12.55.135(a) applies to sentencing for reckless driving -both under state  

                                                                                                                          



law, AS 28.35.400(a), and under Anchorage municipal law, AMC  09.28.010.A.  

                                                                                                                           



                    The decision of the district court is AFFIRMED.  

                                                                                             



                                                           -  12 -                                                       2614
  

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