Opinion
No. A05-1756.
Filed January 16, 2007.
Appeal from the District Court, Clay County, File No. KX-04-1795.
Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, St. Paul, MN; and Ken Kohler, Clay County Attorney, Clay County Courthouse, Moorhead, MN, (for respondent).
John M. Stuart, State Public Defender, Jane E. Rydholm, Assistant Public Defender, Minneapolis, MN, (for appellant).
Considered and decided by SHUMAKER, Presiding Judge; MINGE, Judge; and HUDSON, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2004).
UNPUBLISHED OPINION
Appellant claims that three of his convictions should be reversed because they are not supported by sufficient evidence. Appellant also argues that his sentences should be vacated and his case should be remanded after resentencing because the district court lacked authority to submit sentencing factors to the jury, committed plain error by using the Hernandez sentencing method to calculate his sentence, and assigned an improper severity level to the unranked offense of racketeering in violation of Blakely. Finally, appellant raises several issues in his pro se supplemental brief. Because we conclude that there was sufficient evidence to support the three challenged convictions, that the district court did not err in its sentencing, and that appellant's pro se supplemental claims are without merit, we affirm.
FACTS
Appellant Charles Fraction was an active participant in a group that sold crack cocaine in the Fargo-Moorhead area from early in 2003 to September of 2004. The group sold crack cocaine in the St. Cloud area as early as 1999. From August 2003 to the summer of 2004, police executed a series of controlled crack cocaine purchases from group members using confidential informants and undercover officers to complete the buys. In early September 2004, police executed a search warrant on the premises where several group members lived and arrested appellant and other group members.
Appellant was charged and tried for (1) racketeering; (2) third-degree controlled-substance crime; (3) second-degree controlled-substance crime; (4) fifth-degree possession of ecstasy; and (5) conspiracy to commit third-degree controlled-substance crime. A jury found appellant guilty on all counts. The state moved for an upward durational departure, and the district court submitted five aggravating factors to the jury. The jury found that four of the five factors were applicable, and appellant was sentenced accordingly. This appeal followed.
DECISION I.
The first issue is whether there is sufficient evidence to support appellant's convictions of second-degree controlled-substance crime, conspiracy to commit third-degree controlled-substance crime, and racketeering.
When reviewing the sufficiency of the evidence we engage in a "painstaking analysis" of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jury to reach the verdict it did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The jury's verdict will not be disturbed if the jury, "giving due regard to the presumption of innocence and to the state's burden of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty based on the facts in the record and any legitimate inferences therefrom." State v. Harris, 589 N.W.2d 782, 791 (Minn. 1999) (quotation omitted). "We view the evidence in the light most favorable to the verdict, and assume the jury believed the state's witnesses and disbelieved any contrary evidence." State v. Huynh, 504 N.W.2d 477, 481 (Minn.App. 1993) (quoting State v. Moore, 438 N.W.2d 101, 108 (1988)), aff'd, 519 N.W.2d 191 (Minn. 1994).
A. Second-Degree Controlled-Substance Crime
A person is guilty of second-degree controlled-substance crime if "the person unlawfully sells any amount of a schedule I or II narcotic drug to a person under the age of 18, or conspires with or employs a person under the age of 18 to unlawfully sell the substance." Minn. Stat. § 152.022, subd. 1(5) (2004).
At trial, the state's evidence for this offense was based largely on the testimony of a confidential informant. The state offered evidence that on June 14, 2004, the informant called appellant's cell phone to arrange to purchase crack cocaine. After arranging the sale, the informant and an undercover police officer drove to the apartment complex where appellant lived. The informant called appellant's phone again and then-16-year-old Christopher Lee came outside, got in the car, and completed the sale with the informant.
The informant also testified that two months before the June transaction, he and an undercover officer followed the same procedure, and during the prior transaction appellant personally came out of the same building, got in the vehicle, and sold the informant crack cocaine. Appellant was convicted for this sale as well and does not dispute the conviction. This prior transaction, which was almost identical to the June 14 transaction, is strong evidence that appellant agreed with Christopher Lee to deliver the crack cocaine to the informant. Moreover, appellant's cousin, Marvin Fraction, testified that he and another person brought Christopher Lee to Moorhead to sell crack cocaine and that he (Marvin), appellant, and others used Christopher Lee to sell crack cocaine as a standard practice.
Based on this evidence, the jury drew the inference that appellant directed Christopher Lee, under 18 at the time, to sell crack cocaine to the informant. We cannot say that the jury's conclusion was unreasonable. While appellant maintains that the informant was not a credible witness, credibility determinations are left to the jury, and even when a witness's credibility is seriously called into question, the jury is entitled to believe him or her. State v. Pippitt, 645 N.W.2d 87, 94 (Minn. 2002). We conclude there is sufficient evidence to support and affirm appellant's conviction of second-degree controlled-substance crime.
B. Conspiracy to Commit Third-degree Controlled-Substance Crime
A person is guilty of conspiracy to commit third-degree controlled-substance crime if the person conspires with another person to sell crack cocaine and that person or another member of the conspiracy engages in an overt act in furtherance of the sale. Minn. Stat. §§ 609.175, 152.023, .096 (2004); State v. DeShay, 645 N.W.2d 185, 190 (Minn.App. 2002), aff'd, 669 N.W.2d 878 (Minn. 2003). "Proof of a formal agreement to commit a crime is not required for a conspiracy conviction." State v. Hatfield, 639 N.W.2d 372, 376 (Minn. 2002).
Because direct evidence of a conspiracy is often minimal, "[c]onvictions based on circumstantial evidence alone may be upheld . . . [but] convictions based on circumstantial evidence warrant particular scrutiny." State v. Ferguson, 581 N.W.2d 824, 836 (Minn. 1998). A successful challenge to a conspiracy conviction based on circumstantial evidence "must establish that the evidence in the record and the reasonable inferences that could be drawn therefrom are consistent with a rational hypothesis other than just the defendant's guilt." Hatfield, 639 N.W.2d at 376.
At trial, the state used the June 14, 2004 sale made by Christopher Lee, and facilitated by appellant, as appellant's overt act taken in furtherance of the conspiracy and alleged that appellant entered into the agreement to sell crack cocaine between January 2003 and September 9, 2004. Appellant argues the evidence simply shows that "friends and relatives hung out together during this time. . . ."
Appellant's position is unpersuasive; the state presented sufficient evidence to support the finding of a conspiracy to sell crack cocaine. The record establishes that members of the group regularly pooled their money to buy crack cocaine. Group members relied on appellant and appellant's cousin, Greg Fraction, to buy crack cocaine in Chicago and Minneapolis for the entire group. Several members of the group lived in and sold drugs out of the same apartment. The group divided the drugs, sold them, and pooled their money again to buy more crack cocaine. In the beginning, the group lived communally, and one individual held the money and made purchases for the whole group. Some members of the group, including appellant, used Christopher Lee to execute drug transactions that they arranged. Group members also regularly bailed each other out of jail.
Contrary to appellant's assertion, the evidence shows that the group members were more than social friends. They were organized, they worked together, and they depended on one another to sell crack cocaine. The state's evidence was sufficient to allow a reasonable jury to conclude that appellant agreed with other group members, at the very least tacitly, to sell crack cocaine, and that appellant engaged in an overt act in furtherance of the conspiracy.
C. Racketeering
A person is guilty of racketeering if the person "is employed by or associated with an enterprise and intentionally conducts or participates in the affairs of the enterprise by participating in a pattern of criminal activity." Minn. Stat. § 609.903, subd. 1(1). Appellant claims that in this case there was neither an "enterprise" nor a "pattern of criminal activity."
1. Enterprise
As defined by Minnesota statute, an enterprise includes an "association, or group of persons, associated in fact although not a legal entity. . . ." Minn. Stat. § 609.902, subd. 3 (2004). An "enterprise" is characterized by
1) a common purpose among the individuals associated with the enterprise; where
2) the organization is ongoing and continuing, with its members functioning under some sort of decisionmaking arrangement or structure; and where
3) the activities of the organization extend beyond the commission of the underlying criminal acts either to coordinate the underlying criminal acts into a pattern of criminal activity or to engage in other activities.
State v. Huynh, 519 N.W.2d 191, 196 (Minn. 1994). "Isolated, sporadic criminal acts do not count. The criminal acts must be related through a common plan or shared purpose, or alternatively, must be committed or promoted by persons associated with the enterprise." Id.
Appellant does not dispute that the members of the alleged enterprise had a common purpose under the first prong of Huynh's enterprise test. Instead, appellant argues that under the second and third prongs of the test, there is insufficient evidence to prove that the members had a continuing and ongoing structure, and also insufficient evidence to prove that the activities of the group extended beyond the commission of the underlying criminal acts. We will consider these last two prongs.
a. Continuity and Structure of Personnel
Under the second prong of the Huynh enterprise test, a group has an ongoing and continuous structure "where there is an organizational pattern or system of authority that provides a mechanism for directing the group's affairs on a continuing, rather than ad hoc, basis." Huynh, 519 N.W.2d at 199.
First, the record makes clear that the group's activities were ongoing and continuous. Different members of the group operated together for four years moving between St. Cloud, Sioux Falls, and Fargo-Moorhead. While in Fargo-Moorhead, the group regularly sold crack cocaine to users in the area for more than a year and a half. The group's operations were anything but sporadic.
The record also establishes that the group had a consistent organizational structure. The record does not indicate a decision-making hierarchy in the classical sense, but the statute's definition is not so rigid to require an authoritarian or formal structure. See Minn. Stat. § 609.902, subd. 3 (defining an enterprise to include specified business entities or a group of individuals associated in fact but not a legal entity). Here, group members systematically pooled their money to buy crack cocaine. Appellant and Greg Fraction were the group's regular middlemen, facilitating the purchase of crack cocaine from suppliers. The group systematically divided the crack cocaine for resale by all members of the group, and appellant participated. The group also conducted its crack cocaine selling business from one central location and regularly relied on the same women for transportation. Members also taught Christopher Lee how to sell in Fargo-Moorhead, and appellant used Christopher Lee to complete crack cocaine sales. Telephone records indicate constant communication between members of the group, which also indicates that the group operated systematically. All of this evidence together demonstrates that the group operated in a unified, structured, and methodical way that was designed to sell crack cocaine for profit. Here, the evidence is sufficient to allow a reasonable jury to find that the group operated continuously and in a structured way.
b. Extended Organization
Under the third prong of the Huynh enterprise test, the group's activities must extend beyond the commission of the underlying criminal acts to coordinate a pattern of criminal activity or to engage in other activities. This requirement ensures that the group is "an entity distinct from the predicate crimes." Huynh, 519 N.W.2d at 196 n. 7.
Here, the record and facts cited above amply indicate the group was structured for the purpose of coordinating the sale of crack cocaine into the future and not merely to engage in sporadic or ad hoc criminal acts. The members of the group regularly relied on one another to purchase, transport, and sell crack cocaine, for transportation and lodging, and to bail one another out of jail. The record is sufficient to allow a reasonable jury to find that the group's activities extended beyond mere commission of the predicate criminal acts.
2. Pattern of Criminal Activity
Next we consider appellant's argument that there was not a "pattern of criminal activity." The racketeering statute requires the state to prove that the individual participated in a "pattern of criminal activity." Minn. Stat. § 609.903, subd. 1. To "participate in a pattern of criminal activity" a person must be "a principal with respect to conduct constituting at least three of the criminal acts included in the pattern and two of the acts [must] constitute felonies other than conspiracy." Minn. Stat. § 609.902, subd. 5 (2004). A "[p]attern of criminal activity" means three or more criminal acts that:
(1) were committed within ten years of the commencement of the criminal proceeding;
(2) are neither isolated incidents, nor so closely related and connected in point of time or circumstance of commission as to constitute a single criminal offense; and
(3) were either: (i) related to one another through a common scheme or plan or a shared criminal purpose or (ii) committed, solicited, requested, importuned, or intentionally aided by persons acting with the mental culpability required for the commission of the criminal acts and associated with or in an enterprise involved in those activities.
Minn. Stat. § 609.902, subd. 6 (2004).
Appellant does not dispute his conviction for sale of crack cocaine on March 16; this constitutes one criminal act. And we already rejected appellant's challenges to the sufficiency of the evidence for his conviction of second-degree controlled-substance crime on June 14 and his conviction of an extended conspiracy to commit third-degree controlled-substance crime. These are the second and third acts. The record establishes that these three criminal acts were neither isolated incidents nor so closely related as to make up a single offense. The two sales offenses were completed three months apart, and the conspiracy was ongoing, detailed, and executed over a long period of time. The conspiracy encompassed substantially more activity than the two sales. All three acts also had the shared purpose of furthering the group's crack cocaine selling enterprise. We conclude that the state has offered sufficient evidence to allow a reasonable jury to find that appellant participated in a pattern of criminal activity.
II.
The next issue is whether the district court erred by submitting aggravating sentencing factors to the jury. The Minnesota Supreme Court's recent decision in State v. Chauvin, 723 N.W.2d 20 (Minn. 2006), clearly resolves this issue. In Chauvin, the supreme court decided whether the district court had the inherent authority to impanel a jury to find sentencing factors in the absence of explicit legislative authorization and concluded that it did. Id. at 27. Here, the district court, like the district court in Chauvin, bifurcated the proceedings and reconvened the jury for sentencing. Appellant argues the district court was without authority to do so at the time. But this case is not materially distinguishable from Chauvin, and appellant's argument is squarely foreclosed by that decision. We conclude that the district court did not err by reconvening the jury to find aggravating sentencing factors.
III.
The next issue is whether the United States Supreme Court's Blakely decision prohibits the judicial assignment of a severity level for appellant's unranked racketeering offense.
The application of Blakely is a constitutional issue, which we review de novo. State v. Hagen, 690 N.W.2d 155, 157 (Minn.App. 2004). When imposing a felony sentence, "the district court is required to impose the presumptive sentence set out in the Sentencing Guidelines." State v. Shattuck, 704 N.W.2d 131, 140 (Minn. 2005). "Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." United States v. Booker, 543 U.S. 220, 244, 125 S. Ct. 738, 756 (2005).
Appellant argues that the district court violated Blakely by assigning a severity level, which implicitly involved factfinding, to appellant's unranked racketeering offense. Blakely is not applicable to the district court's assignment of a severity level to appellant's unranked offense. In this context, a Blakely issue arises only when the district court applies a sentence beyond the prescribed maximum. See Blakely v. Washington, 542 U.S. 296, 301, 124 S. Ct. 2531, 2536 (2004). Racketeering is an unranked offense under the sentencing guidelines, and there is no presumptive sentence for racketeering. Until the district court assigns a severity level, it has discretion to sentence up to the statutory maximum. Blakely assumes an established presumptive sentence from which the district court departs based on judicial factfinding.
In contrast to the determinate-sentencing scheme at issue in Blakely, sentencing for unranked offenses is best described as indeterminate. In this state, judges have broad discretion to rank unranked offenses in accordance with an offender's underlying criminal conduct on a case-by-case basis. Minn. Sent. Guidelines cmt. II.A.05 ("When persons are convicted of [unranked offenses], judges should exercise their discretion by assigning an offense a severity level which they believe to be appropriate.") (emphasis added). The comments to the sentencing guidelines specify three factors a judge "may" consider in ranking the offense, but a judge is not limited by these factors. Id.
In Blakely, the Court reasoned that indeterminate-sentencing schemes do not run afoul of an offender's Sixth Amendment right to a jury:
Of course indeterminate schemes involve judicial factfinding, in that a judge . . . may implicitly rule on those facts he deems important to the exercise of his sentencing discretion. But the facts do not pertain to whether the defendant has a legal right to a lesser sentence-and that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned. In a system that says the judge may punish burglary with 10 to 40 years, every burglar knows he is risking 40 years in jail.
Blakely, 542 U.S. at 309, 124 S. Ct. at 2540. Here, Minnesota has said that a judge may punish racketeering with 1 to 20 years in jail, depending on the offender's criminal history score and the judge's determination of the offense's appropriate severity level. And in Minnesota, criminals are deemed to know that by engaging in racketeering they risk the maximum punishment.
The maximum penalty for a racketeering conviction is 20 years in Minnesota. Minn. Stat. § 609.904, subd. 1.
Because Blakely does not apply to indeterminate sentencing, it does not preclude a district court from determining an offender's presumptive sentence, and because the scheme at issue here is best characterized as indeterminate and outside the purview of Blakely, we conclude that the district court did not violate Blakely by ranking appellant's racketeering offense at severity level IX.
However, we note that contrary to respondent's assertion, Blakely's non-applicability to the district court's severity ranking does not mean that Blakely does not apply to the district court's departure from the presumptive sentence after the district court ranked appellant's offense. Here, once the district court, in its discretion, ranked appellant's offense at severity level IX, the legislative scheme provided a presumptive sentence of 110 months based on appellant's criminal history score of two. The district court's upward departure to 156 months was subject to Blakely and was required to be based on facts found by the jury. Because we have concluded that the district court had the inherent authority to impanel a jury to find sentencing factors and in this proceeding the jury found aggravating factors, we affirm the district court's sentence for appellant's racketeering offense.
IV.
Next, we address whether the district court's use of the Hernandez sentencing method to increase appellant's criminal history score for his second-degree sale and fifth-degree possession convictions was reversible error.
Because appellant did not object to the district court's use of the Hernandez method during sentencing, and appellant even indicated its approval of the district court's use of Hernandez among the predicate offenses, we apply the plain error test to determine whether we review this issue. We review unobjected-to error only if there is (1) error; (2) that is plain; and (3) the error affects the defendant's substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).
The Hernandez sentencing method allows a district court sentencing a defendant on the same day for multiple convictions to cumulatively assign one additional point for each prior felony conviction, provided that the offenses are not part of a single behavioral incident or conduct. State v. Hernandez, 311 N.W.2d 478, 480-81 (Minn. 1981). The Hernandez method may not be used to increase an offender's criminal history score for a subsequent offense if the offenses arose from a single conduct within the meaning of Minn. Stat. § 609.035, subd. 1 (2004). State v. Hartfield, 459 N.W.2d 668, 670 (Minn. 1970). Crimes are part of a single behavioral incident "[w]hen one crime is committed with the intent of facilitating another or is but a means toward committing another." State v. Huynh, 504 N.W.2d 477, 484 (Minn.App. 1993), aff'd 519 N.W.2d 191 (Minn. 1994). Although this court has held that the Hernandez sentencing method may not be used between racketeering and the predicate racketeering offenses, id., a person convicted of racketeering may still be sentenced for the predicate criminal acts in addition to the racketeering offense. Minn. Stat. § 609.910, subd. 1 (2004). Nothing in the Huynh or Hartfield decisions addresses the issue before us: the use of Hernandez to increase the criminal history score of one predicate offense based on another predicate offense.
Appellant cites unpublished cases for support. However, we note that such cases are not precedential. See Minn. Stat. § 480A.08, subd. 3 (2004); Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 800 (Minn.App. 1993).
Here, the district court first sentenced appellant on his racketeering conviction and calculated appellant's criminal history score at two. The district court did not use appellant's racketeering conviction to increase the criminal history score for any of the other predicate crimes sentenced that day. But the district court did use the Hernandez method to sentence two of the three predicate crimes. It started with the third-degree sale conviction, used a criminal history score of two, the same criminal history score that the district court had used to sentence appellant's racketeering conviction, and sentenced appellant to 66 months. Then, based on the third-degree sale conviction, the district court increased appellant's score to three for his second-degree sale conviction and sentenced him to 156 months. Finally, based on the third-degree and second-degree sale convictions, the district court calculated appellant's criminal history score at four for the fifth-degree possession conviction, and sentenced him to 34 months. The district court ordered that all sentences run concurrently.
The district court also sentenced appellant for conspiracy to commit third-degree controlled-substance crime, using a criminal history score of three, based on the prior third-degree sale. But the district court ruled that because the conspiracy charge was governed by the racketeering charge, if the racketeering charge is upheld on appeal, the conspiracy conviction should be vacated and that sentence vacated.
Appellant argues that because the third-degree sale, second-degree sale, and fifth-degree possession convictions all constitute part of the racketeering conviction, they are collectively a means toward, or were in furtherance of, a common crime, and, therefore, the court erred by using the Hernandez method among those predicate convictions. Here, except for their tie to racketeering, the predicate offenses are separate, distinct, and discrete offenses. In fact, under the racketeering statute the predicate offenses must not be "so closely related and connected . . . as to constitute a single criminal offense. . . ." Minn. Stat. § 609.902, subd. 6(2). Here, the predicate offenses were committed three or more months apart. Appellant's possession conviction was based on his personal use of ecstasy and was not related to the other two sales convictions. While the two sales convictions were similar in their execution, they were not part of the same behavioral incident. The record provides no indication that either sale was completed in furtherance of the other sale, and the two sales were completed three months apart.
In effect, appellant is urging that we adopt a rule that once appellant was convicted and sentenced for racketeering, he was insulated from any use of Hernandez in sentencing the predicate offenses, regardless of the distinctive nature of the offenses, and despite the statute authorizing separate sentences. Minn. Stat. § 609.910, subd. 1. This would reward appellant for being convicted of racketeering, and we decline to do that. Finally, we note that here the use of Hernandez within the group of predicate offenses does not unfairly exaggerate appellant's criminality. Appellant's criminality is not exaggerated because appellant's sentences are all concurrent, and none of the sentences for the predicate offenses are longer than the sentence for racketeering.
Because these offenses were not part of the same course of conduct, we conclude that, in this proceeding, the district court did not err in its use of the Hernandez method to calculate appellant's criminal history score for his second-degree sale and fifth-degree possession convictions. As a result of this determination, we do not reach the plain error and prejudice prongs of the Griller test.
V.
Appellant raises several claims in his pro se supplemental brief. We address each in turn. First, appellant argues that two different jurors were biased and that the district court should have dismissed them. "In an appeal based on juror bias, an appellant must show that the challenged juror was subject to challenge for cause, that actual prejudice resulted from the failure to dismiss, and that appropriate objection was made by appellant." State v. Stufflebean, 329 N.W.2d 314, 317 (Minn. 1983). Because the district court hears the prospective jurors' testimony during voir dire and observes their demeanor, the district court is in the best position to decide whether prospective jurors can be impartial. State v. Drieman, 457 N.W.2d 703, 708-09 (Minn. 1990). Accordingly, "if jurors indicate their intention to set aside any preconceived notions and demonstrate to the satisfaction of the trial judge that they are able to do so, this court will not lightly substitute its own judgment." Id. at 709.
Here, appellant did not raise bias below and did not exercise a preemptory challenge to either juror. Moreover, the first juror ultimately said he would be able to apply the law and the second juror said that he thought everyone should be treated the same regardless of race, he would treat appellant fairly, look at appellant without considering his race, and overcome any preconceptions. Because the district court is in the best position to determine bias, because appellant's counsel did not strike either juror, and because the record does not clearly show bias, appellant's claim is without merit.
Appellant's next pro se argument is that the accomplice testimony in this case was not sufficiently corroborated. Under Minnesota law, "[a] conviction cannot be had upon the testimony of an accomplice, unless it is corroborated by such other evidence as tends to convict the defendant of the commission of the offense. . . ." Minn. Stat. § 634.04 (2004). Evidence corroborating an accomplice's testimony is sufficient if it reinforces the truth of the accomplice's testimony and substantially points to the defendant's guilt. State v. Pederson, 614 N.W.2d 724, 732 (Minn. 2000).
Here, the state sufficiently corroborated the testimony of Marvin Fraction and other accomplices. The state offered the testimony of a confidential informant and two law enforcement officers, one of whom operated in an undercover capacity during the controlled buy on March 16. In addition, the state offered corroborating audio and video evidence. The state also offered corroborating testimony of several women who were not implicated in the larger racketeering enterprise. All of this evidence consistently reinforced the truthfulness of accomplice testimony and pointed to appellant's guilt. Based on the record, we conclude that the state produced sufficient evidence to corroborate the accomplice testimony offered at trial.
Finally, appellant argues that the district court erred by not giving the jury an accomplice-testimony instruction. The record indicates that the district court did give such an instruction, and appellant's claim is without merit.