Opinion
A149425
07-20-2017
In re TYLER B., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. TYLER B., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J1500979)
Tyler B., a 17-year-old minor, appeals from a disposition order of the juvenile court, challenging an electronics search condition of his probation as unconstitutionally overbroad. He also challenges the juvenile court's calculation of his custody credits, and the language of the disposition order. We reject his contentions and affirm the order.
BACKGROUND
The disposition order Tyler has appealed from was entered on September 2, 2016. Tyler was originally declared a ward of the juvenile court pursuant to Welfare and Institutions Code section 602 on December 16, 2015, after pleading no contest to one misdemeanor count of possessing heroin, one misdemeanor count of possessing burglar's tools and one misdemeanor count of automobile burglary. Remaining allegations against him for other offenses were dismissed. At that December 2015 disposition hearing, the juvenile court removed Tyler from his parents' custody and committed him to the custody of the probation department, to be placed at the Orin Allen Youth Rehabilitation Facility (OAYRF) for a nine-month program, and it imposed a number of probation conditions including an electronics search condition. Tyler did not object to the search condition, which the probation department had recommended, nor did he appeal the December 16, 2016 disposition order.
The specific facts of Tyler's offenses and his personal circumstances, including the struggles he faces in his young adult life, are irrelevant to the questions we decide here, and so we refrain from detailing them.
Unless otherwise specified all further statutory references are to the Welfare and Institutions Code.
Several versions appear in the record but neither party attaches any significance to that fact.
The preprinted, signed minute order from the disposition hearing states, in a handwritten notation (italicized here), Tyler was to "[s]ubmit person, property, any vehicle under minor's control, and residence to search and seizure by any peace officer any time of the day or night with or without a warrant. (including electronic devices, cell phones, access codes)."
The probation department's recommendation, which the court entered as an order, similarly states Tyler was to "[s]ubmit person, property, any vehicle under minor's control, any cell phone or any other electronic device in their possession including access codes, and residence to search and seizure by any peace officer at any time of the day or night, with or without a warrant." (Italics added.)
As orally pronounced at the hearing, the juvenile court articulated the condition with greater specificity: "He must submit . . . any cell phone or any other electronic device in his possession, including access codes ... to search and seizure by any peace officer at any time of the day or night with or without a warrant . . . . [¶] As to the electronic devices under his control, there will be a search of any text messages, voice mail messages, call logs, photographs, email accounts and social media accounts with or without a search warrant at any time of the day or night and provide Probation or the peace officer with any passwords necessary to access the information specified." (Italics added.)
At page 9 of his opening brief, Tyler acknowledges and challenges the condition in its most restrictive form, as orally pronounced at the hearing, and the attorney general's brief contains a record citation to that oral ruling as well, and so we will treat it as the operative order.
Within days of that disposition order, on December 20, Tyler absconded from OAYRF and subsequently, on December 23, he pleaded no contest to a supplemental section 602 petition alleging a misdemeanor escape from a juvenile facility (§ 871, subd. (a).) He was then continued as a ward of the court, on January 8, 2016, and committed once again to the custody of the probation department for out-of-home placement. The probation department recommended, and the court ordered, that the prior orders from December 16, 2015, would remain in effect except to the extent modified. No objection was interposed. On the contrary, Tyler's attorney stated at the hearing's outset, "I am submitting on the recommendation. I agree with Probation's recommendation for Tyler."
On January 26, 2016, Tyler was transported to his new placement, a program called Rite of Passage, and four days later, on January 30, he absconded again. A notice of probation violation was filed pursuant to section 777 and a bench warrant issued, and subsequently, in April 2016, the juvenile court vacated the placement and, once again, ordered all prior orders to remain in effect (except as modified). Once again, Tyler's attorney did not object. Tyler was subsequently arrested and admitted leaving Rite of Passage without permission in violation of probation.
The disposition hearing on the probation violation took place thereafter, on September 2, 2016. The juvenile court ordered Tyler continued as a ward of the court with no termination date, committed him to the custody of the probation officer to be committed to a county institution for a maximum term not to exceed one year and 300 days, and directed him to complete the Youthful Offender Treatment Program (YOTP). As once again recommended by the probation department, the court also ordered that "[a]ll prior orders of the Court remain in full force and effect except where modified herein." Once again, there was no objection.
This timely appeal from the September 2, 2016 disposition order followed.
DISCUSSION
I.
The Electronics Search Condition
Tyler argues, first, that the electronics search condition is unconstitutionally overbroad and should be modified in accordance with In re Malik J. (2015) 240 Cal.App.4th 896 (Malik J.), to permit searches of "electronic devices in [your] custody and control only after the device has been disabled from any internet or cellular connection and without utilizing specialized equipment designed to retrieve deleted information that is not readily accessible to users of the device." (See id. at p. 906.)
A. Appellate Jurisdiction
The attorney general contends we lack jurisdiction to review the validity of the electronics search condition, because it was imposed at Tyler's first disposition hearing in December 2015 and yet Tyler's notice of appeal, which was filed far beyond the 60-day deadline to appeal that earlier disposition order and specifies only the "[d]isposition hearing on 9/2/16," is not timely and does not encompass that earlier ruling. (See Cal. Rules of Court, rules 8.405(a)(3) [notice of appeal must "identif[y] the particular judgment or order being appealed"], 8.406(a)(1) [appeal deadline].)
In re Shaun R. (2010) 188 Cal.App.4th 1129 (Shaun R.) addressed this very situation, and held that a probation condition imposed by a disposition order that had not been appealed could not be reviewed in a timely appeal from a later disposition order even though the later disposition order, like this one, provided that all previous orders remain in effect. (Id. at pp. 1138-1141.) Shaun R. was quite clear: "[w]e do not agree that the routine continuation of a previous order without change revives the right to appeal the merits of a previous order that has become final." (Id. at p. 1139.)
Tyler argues Shaun R. was wrongly decided, principally for the reasons posited by the dissenting opinion in that case. (See Shaun R., supra, 188 Cal.App.4th at pp. 1145-1148 (conc. & dis. opn. of Mihara, J.).) For example, as we previously explained in In re Ronnie P. (1992) 10 Cal.App.4th 1079, "the [juvenile] court is required to examine the entire dispositional picture whenever the minor comes before the court for disposition" and "cannot treat an earlier order as 'self-executing' or 'automatic.' " (Id. at p. 1088.) We refrain from analyzing Tyler's reasons for questioning Shaun R., for we do not need to decide the appealability question. Even if the electronics search condition component of the September 2, 2016 disposition order is nonappealable, we would exercise our discretion to treat Tyler's appeal as a petition for extraordinary writ relief (see In re M.R. (2013) 220 Cal.App.4th 49, 65), in order to dispose of his challenge to the electronics search condition on a much more straightforward ground that both parties have briefed: he forfeited review of this issue by failing to object to the condition below. We now to turn that issue.
B. Tyler Has Forfeited His Challenge to the Search Condition.
In In re Sheena K. (2007) 40 Cal.4th 875 (Sheena K.), our Supreme Court held that "[A] challenge to a term of probation on the ground of unconstitutional vagueness or overbreadth that is capable of correction without reference to the particular sentencing record developed in the trial court can be said to present a pure question of law. Correction on appeal of this type of facial constitutional defect in the relevant probation condition . . . may ensue from a reviewing court's unwillingness to ignore 'correctable legal error.' " (Id. at p. 887.) Nevertheless, Sheena K. cautioned that its "conclusion does not apply in every case in which a probation condition is challenged on a constitutional ground . . . 'since there may be circumstances that do not present "pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court." ' " (Id. at p. 889.) Sheena K. emphasized that "generally, given a meaningful opportunity, the probationer should object to a perceived facial constitutional flaw at the time a probation condition initially is imposed in order to permit the trial court to consider, and if appropriate in the exercise of its informed judgment, to effect a correction." (Ibid.)
A probation condition must be narrowly tailored to a minor's reformation and rehabilitation. (See In re Victor L. (2010) 182 Cal.App.4th 902, 910.) Put another way, to avoid constitutional overbreadth, "[a] probation condition imposed on a minor must be narrowly tailored to both the condition's purposes and the minor's needs . . . ." (In re P.O. (2016) 246 Cal.App.4th 288, 297, italics added.) We decline to undertake this factual inquiry in the first instance.
Tyler cites no case holding that a constitutional overbreadth challenge to an electronics search condition is a facial challenge, cognizable for the first time on appeal. On the contrary, in In re P.O., supra, 246 Cal.App.4th 288, cited by Tyler, the minor objected to an electronics search condition in the juvenile court on an unspecified ground, and on appeal our colleagues in Division One concluded the objection was not sufficient to preserve a constitutional overbreadth claim on appeal. (See id. at pp. 294, 298.) But unlike here, the record reflected the juvenile court's purpose for imposing it (monitoring the minor's drug use), and the court exercised its discretion to consider the issue, concluding the provision was constitutionally overbroad in light of that stated purpose. (See id. at p. 298.) Here, though, the trial court didn't articulate its reasons for imposing this condition. (See also, e.g., In re J.B. (2015) 242 Cal.App.4th 749, 752-753 [where the court did so, after an objection and a contested motion asking to strike the condition].)
In In re D.H. (2016) 4 Cal.App.5th 722, also cited by Tyler, our colleagues in Division One stated in a published portion of its opinion that, in a nonpublished portion, it concluded that an electronics search condition was unconstitutionally overbroad and would be remanded for the juvenile court to modify it. (Id. at pp. 724, 729.) The published, and hence citable, portion of the opinion reflects neither whether an objection was raised below to the condition, nor the reasons for the constitutional infirmity.
Although Tyler contends otherwise, "it is apparent that [he] is not raising a pure facial challenge to the constitutionality of the probation condition that can be determined based on abstract or general legal principles," but instead invites a fact-driven inquiry based upon the specifics of his offense and his personal circumstances, amounting to an argument that "the probation condition is, as applied to him, unconstitutional." (People v. Kendrick (2014) 226 Cal.App.4th 769, 778.) So his constitutional argument "is one that cannot be resolved 'without reference to the particular sentencing record developed in the trial court [and thus does not] present a pure question of law.' " (Id. at p. 777, citing Sheena K., supra, 40 Cal.4th at p. 887.)
In particular, we cannot say as a matter of law that the narrow approach undertaken in Malik J., supra, 240 Cal.App.4th 896, is appropriate in this case. Malik J. held that an electronics search condition that encompassed a juvenile's electronic devices and passwords was unconstitutionally overbroad, and substantially narrowed it on appeal (i.e., by striking the requirement the juvenile provide passwords to social media sites, and also modifying it to permit searches only of offline data and prohibiting the retrieval of deleted information "that is not readily accessible" without the use of specialized equipment). (See id. at pp. 900, 902-906.) But the electronics search condition in Malik J. was justified solely on the ground it was necessary to enable authorities to determine whether the juvenile had stolen another cell phone. (See id. at p. 902.) Here, though, that was not the juvenile court's stated purpose nor can we infer that it was.
On the contrary, the record in this case paints a worrisome picture of a troubled youth. What little we do know from the record, for example, is that Tyler had a chronic substance abuse problem, documented from the outset of these proceedings. By the time of the first disposition hearing in December 2015, he was using marijuana, had experimented with ecstasy and cocaine, and was addicted to heroin. He was assessed at a high risk level for re-offending. And the probation department was concerned, among other things, about his "chronic history of delinquent behavior, substance abuse, and truancy." Later, several months after he absconded from Rite of Passage, he was found living in a vacant building with another male who had three outstanding arrest warrants, where police recovered a laptop computer and other equipment used to forge identity cards, along with a file cabinet belonging to a dentist who had been the victim of an unreported burglary. Tyler was then arrested on an outstanding warrant for his probation violation and on three new felony charges. None of these factors were present in Malik J. In these circumstances, it's possible the juvenile court thought close monitoring of Tyler's electronic communications and activity would be necessary to enable the probation officer "to more effectively scrutinize [his] behavior, [and] reduce[] the likelihood of further misconduct." (In re R.V. (2009) 171 Cal.App.4th 239, 249.)
Electronic monitoring of electronic devices, including social media accounts, is not unconstitutional as a matter of law; the question is whether the invasion of privacy occasioned by such electronics search conditions is justified by countervailing state interests on the particular facts. (See, e.g., People v. Ebertowski (2014) 228 Cal.App.4th 1170, 1175-1177 [upholding probation condition requiring monitoring of gang member's electronic devices and social media accounts]; see also In re P.O., supra, 246 Cal.App.4th at p. 298 [upholding electronics search condition justified by need to supervise juvenile's drug use but narrowing it to apply only to data and communications "reasonably likely to reveal whether [juvenile] is boasting about drug use or otherwise involved with drugs"].) What is constitutionally impermissible in one case might be entirely appropriate in another, because the concept of narrow tailoring is not a one-size-fits-all proposition. Simply put, the more severe a minor's needs are, the broader an electronics search condition may be. (Compare, e.g., In re J.E. (2016) 1 Cal.App.5th 795, 798, 803-807 [rejecting constitutional overbreadth challenge to probation condition permitting warrantless search of minor's " 'electronics, including passwords, at the request of a Probation Officer or peace officer,' " because "[m]inor's circumstances and needs are numerous and fairly severe" and "[a] broad electronic search condition is appropriate for the level of supervision Minor requires"], review granted Oct. 12, 2016, S236628; In re Q.R. (2017) 7 Cal.App.5th 1231, 1238 [rejecting constitutional overbreadth challenge, because "[i]n the context of this case, robust access to minor's electronic devices is critical to monitor his progress on probation and to ensure that he is not continuing to engage in the sort of criminal conduct that led to him being declared a ward of the court"], review granted Apr. 12, 2017, S240222 with, e.g., In re P.O., supra, 246 Cal.App.4th at p. 298 [electronic search condition held constitutionally overbroad because "[minor's] needs are less severe"].) But that does not mean the constitutional inquiry is facial; on the contrary, it depends on a minor's particular rehabilitative needs, i.e., the record of disposition proceedings. Indeed, what the trial court ordered here is not considerably broader than the published disposition in In Jonathan R. (2016) 3 Cal.App.5th 963, cited by Tyler, in which our colleagues in Division One modified an electronics search condition on appeal that, as originally framed, had broadly permitted a warrantless search of " 'any electronic device & cell phone & access codes' " (the court's analysis is not certified for publication). (Id. at p. 967.)
As modified on appeal, the condition in Jonathan R. was narrowed to state: " 'Submit all electronic devices under your control to a search of any medium of communication reasonably likely to reveal whether you are involved with drugs or are otherwise in violation of the remaining probation conditions, with or without a search warrant, at any time of the day or night, and provide the probation or peace officer with any passwords necessary to access the information specified. Such media of communication includes [sic] text messages, voicemail messages, photographs, e-mail accounts, and social media accounts.' " (In Jonathan R., supra, 3 Cal.App.5th at p. 976, italics added.)
Analysis of the permissible scope of restriction on Tyler's constitutional rights in his electronic devices, then, would require consideration of the facts and circumstances of his offenses as well as his personal circumstances, and would require us to decide whether the restriction is sufficiently tailored to the purpose the juvenile court intended it to serve. Without knowing that purpose, though, and without considering Tyler's specific circumstances, we cannot say as a matter of law that the condition is unconstitutionally overbroad.
Compounding our reluctance to decide this question in the first instance is the fact that Tyler had at least four chances to object to the condition in open court yet never did so: when it was imposed at the December 2015 disposition hearing, when that prior order was ordered to remain in effect a few weeks later after he had escaped from OAYRF, and then again when his placement at Rite of Passage was vacated after he absconded from there too, and then again a third time at the September 2, 2016 disposition hearing.
Nor can we be confident the record in this case is fully developed. Because Tyler did not object to the search condition when the probation department proposed it, or at any time thereafter when the court ordered it to remain in effect on multiple occasions, there was no opportunity for the probation department to make a record further explaining why it recommended the search condition, no hearing took place, and there was no opportunity for the probation officer to conduct a follow-up investigation into Tyler's use of electronic devices and media, if need be, to explore more fully the extent to which monitoring his usage would assist the department in supervising him.
Against this backdrop, we cannot presume from a silent record Tyler was not an active user of social media or predisposed to use his devices in connection with criminal activity (compare In re Erica R. (2015) 240 Cal.App.4th 907, 913), or that he does not use online services or social media accounts to communicate about his drug use or other illegal activity (see In re P.O., supra, 246 Cal.App.4th at p. 298), because those factual questions were never placed at issue despite multiple opportunities. On the contrary, what little evidence there is in this record—namely, the laptop recovered in connection with Tyler's most recent arrest—shows he is predisposed to use electronic devices in connection with possible criminal activity. So we refrain from exercising our discretion to decide this forfeited issue and second-guess the juvenile court's rulings on the basis of this record.
We agree with our colleagues in the Fourth District who recently put it this way in declining to consider a minor's constitutional overbreadth challenge to an electronics search condition for the first time on appeal: "to evaluate [minor's] overbreadth claim, we need to consider his subject crime. Such an analysis does not present a pure question of law, but instead, requires a consideration of the record. Such contemplation of the record is precisely why the California Supreme Court emphasized the importance of raising constitutional challenges in the lower court to allow that court to consider the specific argument instead of asking the appellate court to address the issue in the first instance on a cold record. (See Sheena K., supra, 40 Cal.4th at p. 889.) Indeed, the record before us is particularly frigid as there is no indication that the parties discussed the search condition whatsoever in the juvenile court. Under the unique facts of this case, forfeiture is appropriate." (In re R.S. (2017) 11 Cal.App.5th 239, 247.)
The same is true here.
II.
Pre-Disposition Custody Credits
Tyler argues, next, the juvenile court erroneously calculated his pre-disposition custody credits (see In re Eric J. (1979) 25 Cal.3d 522, 533-536; § 726, subd. (d)(1); Pen. Code, §2900.5), depriving him of three additional days of credit for time spent in custody. The parties agree that this issue turns on whether Tyler is entitled to credit for the brief time he spent at Rite of Passage before absconding from that placement.
A minor is not entitled to credit for time spent in a non-secure placement, and we do not understand Tyler to contend otherwise. (See In re Randy J. (1994) 22 Cal.App.4th 1497, 1504-1507 (Randy J.); § 726, subd.(d)(5) [" 'Physical confinement' means placement in a juvenile hall, ranch, camp, forestry camp or secure juvenile home pursuant to Section 730, or in any institution operated by the Department of Corrections and Rehabilitation, Division of Juvenile Justice"].) Tyler maintains, though, that "Respondent has presented no evidence showing that [Rite of Passage] is not a 'secure juvenile home.' " (Italics added.)
We reject this contention, because it puts the shoe on the wrong foot. It is Tyler's burden, as the appellant, to demonstrate on the basis of this record that Rite of Passage is a secure facility, thus entitling him to pre-disposition custody credit for his time there. That is because we must presume the trial court ruled correctly, not that it erred, and we cannot infer error from a record that is silent. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [" '[a] judgment or order of the lower court is presumed correct . . . and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error' "].)
Furthermore, although the parties have not discussed it, the record reflects that Rite of Passage is not a secure setting. The September 1, 2016 probation report contains an account of Tyler's departure from there, and it is reasonably susceptible to the inference that Tyler was living in an unlocked, non-secure facility. In addition, that report specifically characterizes Rite of Passage as an "open setting." And then at the September 2, 2016 disposition hearing, the probation officer similarly alluded to Rite of Passage as an "open access program," contrasting it with the YOTP where the department recommended Tyler be placed: he told the court, "the YOTP program is a locked facility. . . . The minor will not have the opportunity to run, since it's a locked facility. The probation department feels that that's the only option it has right now because the other programs are open access programs in which he has proven that he has run from those programs." (Italics added.) In short, Rite of Passage was a non-secure setting and so Tyler is not entitled to pre-disposition credit for his time there. There was no error. (See Randy J., supra, 22 Cal.App.4th at pp. 1500, 1506 [affirming denial of pre-disposition custody credits for non-secure placement at Rite of Passage program located in Nevada].)
The report states: "According to the incident report provided by [Rite of Passage], on January 30, 2016, at approximately 10:43 PM, Tyler along with two other residents ran out their bedroom doorways and out the back door of the dormitory. Staff radioed to notify the supervisor and others of the situation. The Immediate Action Team (IAT) was dispatched and began to surveil the surrounding areas. Staff did note [Rite of Passage] student clothing was tied to tree branches and hanging on fence posts. It was suggested this was done to signal others if the residents were awaiting a ride. Staff continued to search throughout the night to no avail. As a result, a probation violation was filed and warrant requested." (Italics added.)
It states at page 5, "Tyler was screened for out of home placement, the OAYRF and for the YOTP. Tyler was found not appropriate for both out of home placement and the OAYRF due to history [sic] of absconding from open settings. Tyler was placed in one of the most remote placements Probation utilizes and absconded in the middle of winter. Tyler was found suitable and appropriate for the YOTP." (Italics added.) --------
III.
No Modification of the Disposition Order Is Necessary to State Tyler's Maximum
Confinement Time.
Finally, Tyler argues the disposition order must be modified to state that he "cannot be held in custody longer than an adult can be held under the same circumstances." He contends this is required by subdivision (d)(1) of section 726, which states: "If the minor is removed from the physical custody of his or her parent or guardian as the result of an order of wardship made pursuant to Section 602, the order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court." (Italics added.)
Here, both the court's oral commitment order and its signed minute order state that Tyler is to be "committed to a County institution for a period not to exceed the maximum custody time of 1 year 300 days, or until age 21, whichever occurs first," with specified credit for time served. Tyler does not contend the maximum confinement time specified in the orders is wrong; he complains merely that the juvenile court did not make the additional statement he contends is required by the language of section 726. We agree with the attorney general that the order complies with section 726 by stating the maximum confinement time, and that requiring juvenile courts to do more, and quote the actual text of section 726, "would unnecessarily compel an idle act."
The point of section 726 is substantive, not technical as would be true if it required talismanic recital of the statutory language, and requires only that the maximum confinement time be specified. In In re James A. (1980) 101 Cal.App.3d 332, not cited by either party, this court held that two commitment orders that did precisely what Tyler says the law requires—recite that the minor "may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the same offenses"—did not comply with section 726, because they failed to specify the minors' maximum term of confinement. (See James A., at pp. 336-340.) There, we said that section 726 "is clearly directive and requires the juvenile court judgment to automatically specify in his commitment order the maximum period of confinement." (James A., at p. 339; accord, In re Ricky H. (1981) 30 Cal.3d 176, 191.) Accordingly, we modified the commitment orders on appeal to specify the minors' actual maximum terms. (See id. at p. 340.) More recently, the Supreme Court has indicated that is all that's required too, observing that "a juvenile court's written commitment order would comply with the court's statutory duty to 'specify' [citation] the minor's maximum confinement period" under section 726. (In re Julian R. (2009) 47 Cal.4th 487, 497 [construing former section 726, subdivision (c), now codified at subdivision (d)(1)].) And the rules of court require only that too. (See Cal. Rules of Ct., rule 5.795(b) ["If the youth is declared a ward under section 602 and ordered removed from the physical custody of a parent or guardian, the court must specify and note in the minutes the maximum period of confinement under section 726"].) So too does the Judicial Council form approved for optional use by juvenile courts. (See Judicial Council of Cal. Forms, form JV-667 (Rev. Jan. 1, 2016) ("Custodial and Out-of-Home-Placement Disposition Attachment"), item 1.) Tyler cites no contrary authority.
There was no error. The disposition order does "specify that [Tyler] may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court" (§726, subd.(d)(1)), because it states that he may not be confined longer than the specific time period the juvenile court determined, correctly, was the maximum possible term of confinement for an adult.
DISPOSITION
The September 2, 2016 disposition order is affirmed.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
MILLER, J.