State of Louisiana v. Darnell J. Huntley

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

13-127

STATE OF LOUISIANA

VERSUS

DARNELL J. HUNTLEY

**********

APPEAL FROM THE

FIFTEENTH JUDICIAL DISTRICT COURT

PARISH OF VERMILION, NO. 22045

HONORABLE JULES DAVIS EDWARDS, DISTRICT JUDGE

**********

JOHN D. SAUNDERS

JUDGE

**********

Court composed of Sylvia R. Cooks, John D. Saunders, and Elizabeth A. Pickett,

Judges.

WRIT GRANTED AND MADE PEREMPTORY.

Cooks, J., would deny the writ finding no error.

Hon. James David Caldwell

Attorney General

P. O. Box 94005

Baton Rouge, LA 70804-9005

(225) 326-6200

COUNSEL FOR PLAINTIFF APPLICANT:

State of Louisiana

Michael Harson

District Attorney, 15th JDC

P.O. Box 3306

Lafayette, LA 70502-3306

(337) 232-5170

COUNSEL FOR PLAINTIFF APPLICANT:

State of Louisiana

Jan Frederick Rowe

Attorney At Law

124 N. State St., Suite 300

Abbeville, LA 70510

(337) 898-1049

COUNSEL FOR DEFENDANT RESPONDENT:

Darnell J. Huntley

Laurie A. Hulin

15th JDC-Vermilion Parish, ADA

P. O. Box 175

Abbeville, LA 70511-017

(337) 898-4320

COUNSEL FOR PLAINTIFF APPLICANT:

State of Louisiana

Colin Clark

Assistant Attorney General

P.O. Box 94005

Baton Rouge, LA 70804-9095

(225) 326-6257

COUNSEL FOR PLAINTIFF APPLICANT:

State of Louisiana

Kevin Valdez

Felony Defender

P.O. Box 3622

Lafayette, LA 70502

(337) 232-9345

COUNSEL FOR DEFENDANT RESPONDENT:

Darnell J. Huntley

SAUNDERS, Judge.

The Defendant, Darnell Huntley, who was a juvenile at the time of the

offense, was convicted of first degree murder on September 30, 1982, and

sentenced to life imprisonment at hard labor without benefit of probation, parole,

suspension, or commutation of sentence.1 On appeal, the Defendant‘s conviction

was affirmed, but his sentence was vacated and the matter remanded for

resentencing to life imprisonment at hard labor without benefit of probation,

parole, or suspension of sentence. State v. Huntley, 438 So.2d 1188 (La.App. 3

Cir. 1983), writ denied, 443 So.2d 1115 (La.1984).

The Defendant filed a motion to correct illegal sentence on July 25, 2012.

Therein, he alleged his automatic sentence of life imprisonment without benefit of

probation, parole, or suspension of sentence while under the age of eighteen was a

violation of the ruling in Miller v. Alabama, 567 U.S. __, 132 S.Ct. 2455 (2012).

In Miller, the Supreme Court held that a defendant under the age of eighteen

could not automatically be sentenced to life imprisonment without parole. Instead,

the sentencing court must hold a hearing to consider mitigating factors, such as the

defendant‘s youth, before imposing this severe penalty.

A hearing on the motion was held on January 14, 2013, and the trial court

found the ruling in Miller applied retroactively to the Defendant. Resentencing of

the Defendant was set for March 25, 2013. The State subsequently noticed its

intent to seek supervisory review of the trial court‘s ruling and requested a stay of

the proceedings. The request for a stay was denied.

1

We note that the minutes of court dated January 24, 1983, state the Defendant was

convicted of second degree murder.

The State filed a notice of intent to seek supervisory writs on January 17,

2013. A writ application was received by this court on February 7, 2013. Therein,

the State asserts the trial court incorrectly found that Miller applied retroactively

on collateral review under the primary conduct exception of Teague v. Lane, 489

U.S. 288, 109 S.Ct. 1060 (1989). In its writ application, the State asked this court

to grant its writ application, stay the scheduled sentencing hearing, and set this

matter for oral argument.

This matter was granted to the docket on March 21, 2013. The State and the

Defendant have filed additional briefs in this matter. Oral argument were heard on

May, 29, 2013.

DISCUSSION OF THE MERITS:

In its writ application, the State contended the trial court incorrectly found

that Miller v. Alabama, 567 U.S. ___, 132 S.Ct. 2455 (2012), applied retroactively

on collateral review. We agree.

In State ex rel. Taylor v. Whitley, 606 So.2d 1292, 1292-93 (La.1992), cert.

denied, 508 U.S. 962, 113 S.Ct. 2935 (1993), the supreme court held the standards

for retroactivity set forth in Teague v. Lane, 489 U.S. 288, apply to all cases on

collateral review in Louisiana.

The Teague inquiry is conducted in three steps. First, the date

on which the defendant‘s conviction became final is determined.

Lambrix v. Singletary, 520 U.S. 518, 527, 117 S.Ct. 1517, 1524, 137

L.Ed.2d 771 (1997). Next, the habeas court considers whether ― ‗a

state court considering [the defendant‘s] claim at the time his

conviction became final would have felt compelled by existing

precedent to conclude that the rule [he] seeks was required by the

Constitution.‘ ‖ Ibid. (quoting Saffle v. Parks, 494 U.S. 484, 488, 110

S.Ct. 1257, 1260, 108 L.Ed.2d 415 (1990)) (alterations in Lambrix ).

If not, then the rule is new. If the rule is determined to be new, the

final step in the Teague analysis requires the court to determine

whether the rule nonetheless falls within one of the two narrow

exceptions to the Teague doctrine. 520 U.S., at 527, 117 S.Ct., at

2

1524-1525. The first, limited exception is for new rules ―forbidding

criminal punishment of certain primary conduct [and] rules

prohibiting a certain category of punishment for a class of defendants

because of their status or offense.‖ Penry v. Lynaugh, 492 U.S. 302,

330, 109 S.Ct. 2934, 2953, 106 L.Ed.2d 256 (1989). The second, even

more circumscribed, exception permits retroactive application of

―watershed rules of criminal procedure implicating the fundamental

fairness and accuracy of the criminal proceeding.‖ Graham [v.

Collins, 506 U.S. 461, 113 S.Ct. 892 (1993)], supra, at 478, 113 S.Ct.,

at 903 (quoting Teague, supra, at 311, 109 S.Ct., at 1075) (internal

quotation marks omitted). ―Whatever the precise scope of this

[second] exception, it is clearly meant to apply only to a small core of

rules requiring observance of those procedures that ... are implicit in

the concept of ordered liberty.‖ Graham, supra, at 478, 113 S.Ct., at

903 (internal quotation marks omitted).

O’Dell v. Netherland, 521 U.S. 151, 156-57, 117 S.Ct. 1969, 1973 (1997).

Miller was decided after the Defendant‘s conviction became final in 1984,

and the Defendant sought retroactive application of Miller in his collateral attack

upon his sentence. The trial court found Miller applied retroactively, stating:

With regard to whether or not this new rule as I described in the

combined cases of Miller v Alabama and Kuntrell Jackson v Ray

Hobbs, as to whether or not this rule is substantive or procedural, this

is what I understand the criteria to be. A rule is substantive rather than

procedural if it alters the range of conduct or the class of persons that

the law punishes. However, as I look at it there are really two parts of

this: if the rule decriminalizes a class of conduct or prohibits the

imposition of punishment on a particular class of persons.

I will agree that this new rule has not decriminalized a class of

conduct. The second part is very significant. The question is: does

this new rule prohibit the imposition of a particular kind of

punishment on a particular class of people. The Supreme Court for

many, many, many, many, many, many years has said death is

different. Death is different. In this case, the Miller case, the author of

the opinion took great pains to write that life for a juvenile is the

functional equivalent of death for an adult. It is a more substantive,

more onerous penalty for a juvenile to get life than for an adult to get

life.

So thus, if I am to consider the penalty in this case, juvenile life

has [sic] the functional equivalent of death for an adult, then it has

proscribed, removed a particular kind of penalty being applied to a

particular class of offenders. Thus, it‘s retroactive.

3

United States Supreme Court

In Jackson v. Hobbs, which was consolidated with Miller, the defendant

was convicted of felony murder and aggravated robbery, which he committed

when he was fourteen years old. Following the Supreme Court‘s opinion in

Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183 (2005), which invalidated the

death penalty for all juvenile offenders under the age of eighteen, Jackson filed a

state petition for habeas corpus arguing that a mandatory sentence of life without

parole for a fourteen-year-old also violated the Eighth Amendment. While the

ruling was on appeal, the Supreme Court issued its opinion in Graham v. Florida,

__ U.S. __, 130 S.Ct. 2011 (2010), in which it found that a sentence of life without

parole imposed upon juvenile non-homicide offenders violated the Eighth

Amendment. Thereafter, the Supreme Court granted relief to Jackson on collateral

review.

In Teague, 489 U.S. at 300, the Supreme Court stated: ―once a new rule is

applied to the defendant in the case announcing the rule, evenhanded justice

requires that it be applied retroactively to all who are similarly situated.‖ In Penry

v. Lynaugh, 492 U.S. 302, 313, 109 S.Ct. 2934, 2944 (1989), abrogated on other

grounds by Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242 (2002), the Supreme

Court subsequently stated: ―Under Teague, new rules will not be applied or

announced in cases on collateral review unless they fall into one of two exceptions

[specified in Teague].‖ However, in Tyler, 533 U.S. at 663 (footnote omitted),

which involved the filing of a second habeas corpus application under the

4

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the Supreme

Court stated:2

The only way the Supreme Court can, by itself, ―lay out and

construct‖ a rule‘s retroactive effect, or ―cause‖ that effect ―to exist,

occur, or appear,‖ is through a holding. The Supreme Court does not

―ma[k]e‖ a rule retroactive when it merely establishes principles of

retroactivity and leaves the application of those principles to lower

courts. In such an event, any legal conclusion that is derived from the

principles is developed by the lower court (or perhaps by a

combination of courts), not by the Supreme Court. 4 We thus conclude

that a new rule is not ―made retroactive to cases on collateral review‖

unless the Supreme Court holds it to be retroactive.

....

We further note that our interpretation is necessary for the

proper implementation of the collateral review structure created by

AEDPA.

_____________________

4

Similarly, the Supreme Court does not make a rule retroactive through

dictum, which is not binding. Cf. Seminole Tribe of Fla. v. Florida, 517 U.S. 44,

67, 116 S.Ct. 1114, (1996) (contrasting dictum with holdings, which include the

final disposition of a case as well as the preceding determinations ― necessary to

that result‖ (emphasis added)).

The Supreme Court later noted that multiple cases could make a new rule

retroactive, but only if the holdings in those cases necessarily dictated retroactivity

of the new rule. Id. at 666.

We find that the case at bar is distinguishable from Tyler. The Defendant in

the case at bar has not filed a habeas claim governed by the AEDPA.

2

AEDPA § 2244(b)(2)(A) covers claims that

―rel[y] on a new rule of constitutional law, made retroactive to cases on collateral

review by the Supreme Court, that was previously unavailable.‖ This provision

establishes three prerequisites to obtaining relief in a second or successive

petition: First, the rule on which the claim relies must be a ―new rule‖ of

constitutional law; second, the rule must have been ―made retroactive to cases on

collateral review by the Supreme Court‖; and third, the claim must have been

―previously unavailable.‖

Tyler, 533 U.S. at 662.

5

Federal Appellate Courts

In Craig v. Cain, __ F.3d __ (5th Cir. 2013), the United States Fifth Circuit

held that Miller established a new rule. 3 However, that new rule did not apply

retroactively, as the Miller decision did not categorically bar all sentences of life

imprisonment for juveniles. Additionally, the decision did not qualify as a

watershed rule of criminal procedure, as it was an outgrowth of the Supreme

Court‘s prior decisions that relate to individualized sentencing determinations.

In People v. Carp, 307,758 (Mich.App. 11/15/12), 828 N.W.2d 685, a

Michigan appellate court held that Miller should not be applied retroactively to

cases already final on appeal when the Miller decision was rendered. The court

analyzed the retroactivity question under Teague and the Michigan state standard

and found that Miller dealt exclusively with sentencing; therefore, it was

procedural and not substantive in nature and did not comprise a watershed rule.

The Michigan appellate court also stated the mere fact that the Supreme

Court remanded Jackson‘s case for resentencing did not constitute a ruling or

determination on retroactivity. The court then set forth the following:

The only way the Supreme Court can, by itself, ―lay out

and construct‖ a rule‘s retroactive effect, or ―cause‖ that

effect ―to exist, occur, or appear,‖ is through a holding.

The Supreme Court does not ―ma[k]e‖ a rule retroactive

when it merely establishes principles of retroactivity and

leaves the application of those principles to lower courts.

In such an event, any legal conclusion that is derived

from the principles is developed by the lower court (or

perhaps by a combination of courts), not by the Supreme

Court. We thus conclude that a new rule is not ―made

retroactive to cases on collateral review‖ unless the

Supreme Court holds it to be retroactive.[]

[Tyler v. Cain, 533 U.S. 656, 663, 121 S.Ct. 2478 (2001) (footnotes

omitted).]

3

This case can be found at the following citation: 2013 WL 69128.

6

In addition:

[T]he nonretroactivity principle prevents a federal

court from granting habeas corpus relief to a state

prisoner based on a rule announced after his conviction

and sentence became final. A threshold question in every

habeas case, therefore, is whether the court is obligated to

apply the Teague rule to the defendant‘s claim. We have

recognized that the nonretroactivity principle ―is not

‗jurisdictional‘ in the sense that [federal courts] ... must

raise and decide the issue sua sponte.‖ Thus, a federal

court may, but need not, decline to apply Teague if the

State does not argue it. But if the State does argue that

the defendant seeks the benefit of a new rule of

constitutional law, the court must apply Teague before

considering the merits of the claim.[]

[Caspari v. Bohlen, 510 U.S. 383 at 389, 114 S.Ct. 948 (1994)

(citations omitted, emphasis in original).]

This is consistent with the Court‘s determination in Schiro v.

Farley, which provides:

Nevertheless, the State failed to argue Teague in

its brief in opposition to the petition for a writ of

certiorari. In deciding whether to grant certiorari in a

particular case, we rely heavily on the submissions of the

parties at the petition stage. If, as in this case, a legal

issue appears to warrant review, we grant certiorari in the

expectation of being able to decide that issue. Since a

State can waive the Teague bar by not raising it, and

since the propriety of reaching the merits of a dispute is

an important consideration in deciding whether or not to

grant certiorari, the State‘s omission of any Teague

defense at the petition stage is significant. Although we

undoubtedly have the discretion to reach the State‘s

Teague argument, we will not do so in these

circumstances.[]

[Schiro v. Farley, 510 U.S. 222, 229, 114 S.Ct. 783 (1994) (citations

omitted).]

In Jackson, because the State did not raise the issue of

retroactivity, the necessary predicate for the Court to resolve the

question of retroactivity was waived. Hence, merely because Jackson

was before the Court on collateral review is not dispositive on the

issue of retroactivity.

7

Carp, 828 N.W.2d 685, 712-13.

In People v. Morfin, 1-10-3568 (Ill.App. 1 Dist. 11/30/12), 981 N.E.2d 1010,

the Illinois appellate court held that Miller created a new substantive rule and

applied retroactively, as Miller required Illinois courts to hold a sentencing hearing

for every minor convicted of first degree murder at which a sentence other than

natural life imprisonment must be available for consideration. The appellate court

noted that its decision was reinforced by the fact that, in Miller, Jackson was

before the Supreme Court on collateral review and received the same relief that

Miller did. The appellate court stated: ―the relief granted to Jackson in Miller

tends to indicate that Miller should apply retroactively on collateral review.‖

In People v. Williams, 1-11-1145, 1-11-2251 (Ill.App. 1 Dist. 12/12/12), 982

N.E.2d 181, the Illinois appellate court held the decision in Miller constituted a

substantial change in the law and was a watershed rule of criminal procedure. The

appellate court further stated:

It is instructive that the Miller companion case, Jackson v. Hobbs,

arising on collateral review, involved a life-without-parole-sentence

heretofore final. Notwithstanding its finality, the Supreme Court of

the United States in effect retroactively applied Miller and vacated

Jackson‘s sentence. ―[O]nce a new rule is applied to the defendant in

the case announcing the rule, evenhanded justice requires that it be

applied retroactively to all who are similarly situated.‖ Teague, 489

U.S. at 300, 109 S.Ct. 1060. The Miller case held under the eighth

amendment that it is cruel and unusual punishment to impose a

mandatory life sentence without parole to a special class—juveniles. It

would also be cruel and unusual to apply that principle only to new

cases. We therefore hold that the Court‘s holding in Miller should be

retroactively applied.

Id. at 197.

Louisiana Supreme Court

In State v. Simmons, 11-1810, pp. 1-2 (La. 10/12/12), 99 So.3d 28, 28, our

supreme court stated the following:

8

Relator is presently serving a sentence of life imprisonment at hard

labor without possibility of parole for a second degree murder

committed in 1995 when he was 17 years old. The sentence was

mandated by the penalty provision of the statute establishing the

offense. La.R.S. 14:30.1(B). In 2011, relator filed a motion to correct

an illegal sentence in which he contended that a sentence of life

imprisonment without parole for a juvenile offender is no longer

constitutionally permissible under developing legal standards, and in

particular in light of Graham v. Florida, 560 U.S. ––––, 130 S.Ct.

2011, 176 L.Ed.2d 825 (2010) (Eight Amendment precludes

sentencing juvenile offenders to life imprisonment without parole for

non-homicide crimes). The district court denied relief. While review

of that judgment was pending, the United States Supreme Court

determined that mandatory life imprisonment without parole for those

offenders under the age of 18 years at the time they committed a

homicide offense violates the Eighth Amendment prohibition of

―cruel and unusual punishments.‖ Miller v. Alabama, 567 U.S. ––––,

––––, 132 S.Ct. 2455, 2466, 183 L.Ed.2d 407 (2012). Unlike the case

in Graham, the Miller court did not prohibit life imprisonment

without parole for juveniles, but instead required that a sentencing

court consider an offender‘s youth and attendant characteristics as

mitigating circumstances before deciding whether to impose the

harshest possible penalty for juveniles who have committed a

homicide offense. Therefore, we grant to remand to the district court

for reconsideration after conducting a sentencing hearing in accord

with the principles enunciated in Miller and stating the reasons for

reconsideration and sentencing on the record.

In State ex rel. Landry v. State, 11-796 (La. 1/18/13), 106 So.3d 106, our

supreme court stated:

Relator is presently serving a sentence of life imprisonment without

possibility of parole for a second degree murder committed in 1976

when he was 17 years old. The sentence was mandated by the penalty

provision of the statute establishing the offense. R.S. 14:30.1. In 2011,

relator filed a motion to correct an illegal sentence in which he

contended that a sentence of life imprisonment without parole for a

juvenile offender is no longer constitutionally permissible under

developing legal standards, and in particular in light of Graham v.

Florida, 560 U.S. ––––, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010)

(Eighth Amendment precludes sentencing juvenile offenders to life

imprisonment without parole for non-homicide crimes). The district

court (Johnson, J) denied relief. While review of that judgment was

pending, the United States Supreme Court determined that mandatory

life without parole for those under the age of 18 at the time of their

crimes violates the Eighth Amendment‘s prohibition on ―cruel and

unusual punishments‖. Miller v. Alabama, No. 10–9646 slip op., 567

U.S. ––––, 130 S.Ct. 2011, ––––, 176 L.Ed.2d 825 (June 25, 2012).

9

Unlike the case in Graham, the Miller court did not establish a

categorical prohibition against life without parole for juveniles but

instead required that a sentencing court consider an offender‘s youth

and attendant characteristics as mitigating circumstances before

deciding whether to impose the harshest possibly penalty for

juveniles. Therefore, we grant to remand to the district court to

reconsider the sentence after conducting a new sentencing hearing in

accordance with the principles enunciated in Miller v. Alabama.

CLARK, J. dissenting.

I would grant the writ for consideration for a full analysis under

Teague v. Lane, 489 U.S. 288 (1989).

The State alleges the Teague defense was not argued before our supreme

court in Simmons, 99 So.3d 28, or Landry, 106 So.3d 106, and was not raised by

the supreme court sua sponte. Thus, our supreme court has said nothing on the

issue of retroactivity.

The Defendant contends that our supreme court applied Miller retroactively

in Simmons, 99 So.3d 28, and Landry, 106 So.3d 106. He asserts that in Simmons,

―[t]he Louisiana Supreme Court once again held that because Miller ruled that

mandatory life imprisonment for juveniles was unconstitutional, that they would

apply its ruling retroactively.‖

We find that our supreme court has not reached the issue squarely before us

in this case. Therefore, we must conduct a Teague analysis as a matter of first

impression in the Louisiana courts. Therefore, the parties‘ arguments regarding the

Teague analysis and cases from other jurisdictions that have addressed this issue

must be considered.

Arguments of the Parties

The State asserts that in Craig, the Fifth Circuit also found that Miller was

not retroactive under the primary conduct exception to Teague, reasoning that the

exception apparently only applies when a new rule fully removes a specific

10

punishment from the list available to be constitutionally imposed to deter a class of

defendants, i.e., not when a ruling deals with the considerations given in imposing

a sentence. The State asserts that Craig is the only Louisiana case that deals with

the retroactivity of Miller.

The State asserts that, as in Carp, 828 N.W.2d 685, it is not beyond the

power of the law making authority to sentence a juvenile to life without benefit of

parole; thus, it follows that the Supreme Court has not made the new rule set forth

in Miller retroactive to cases on collateral review under the primary conduct

exception.

Additionally, the State cites In re Morgan, 713 F.3d 1365 (11th Cir. 2013).

In Morgan, the Eleventh Circuit declined to apply the rule set forth in Miller

retroactively, finding Miller did not prohibit a certain category of punishment for a

class of defendants because of their status or offense and was procedural in nature

because it regulated only the manner of determining a defendant‘s culpability.

The Defendant asserts that the rule in Miller requires new procedural

considerations before sentencing and such procedural requirements amount to a

watershed rule under Teague. The Defendant also proposes that the Supreme

Court in Miller noted the unreliability of mandatory life without parole sentences

for juveniles when it stated such sentences posed too great a risk of

disproportionate punishment. The Defendant notes that in Williams, 982 N.E.2d

181, the Illinois appellate court held that Miller was a watershed rule of criminal

procedure.

Additionally, the Defendant asserts that Morgan, 713 F.3d 1365, Craig,

(2013 WL 69128), and Carp, 828 N.W.2d 685, have no precedential value, as

states are free to give broader retroactive effect to new rules of criminal procedure

11

than is required by federal law. The Defendant asserts the procedural posture in

Craig, (2013 WL 69128), was starkly different from the case at bar, as the

defendant in Craig was before the court on federal habeas review under 28 USC

§2254. The Defendant alleges the issue of retroactivity was considered sua sponte

in that case. Further, the opinion is unpublished, and is, therefore, not controlling

precedent pursuant to 5th Cir. R. 47.5.4, which provides that unpublished opinions

issued on or after January 1, 1996, are not precedent, except under the doctrine of

res judicata, collateral estoppel, or law of the case.

The Defendant also argues that Morgan, 713 F.3d 1365, is distinguishable

because it was a federal proceeding in which the defendant sought to have his

sentence amended pursuant to federal law, and this court is not bound by the

Eleventh Circuit‘s ruling.

Finally, the Defendant further argues that Carp, 828 N.W.2d 685, is

distinguishable because Michigan applies a different statutory scheme to determine

retroactivity. We note that the Michigan court of appeal analyzed the retroactivity

question using the Teague analysis and the Michigan state standard. Thus, this

argument is not accurate.

After thoroughly reviewing the jurisprudence on both sides of this matter,

we agree with the reasoning put forth by our Fifth Circuit in Craig v. Cain. The

Miller decision did not bar all sentences of life imprisonment for juveniles. Rather,

it merely added a procedural safeguard that must be followed in order to impose

that particular punishment. Additionally, the decision did not qualify as a

watershed rule of criminal procedure, as it was an outgrowth of the Supreme

Court‘s prior decisions that relate to individualized sentencing determinations.

12

Accordingly, we find that it is a procedural rule that does not apply retroactively

under Teague.

DECREE:

The trial court erred in finding Miller v. Alabama, 567 U.S. __, 132 S.Ct.

2455, (2012), retroactively applicable to this matter. See Craig v. Cain, __ F.3d __

(5th Cir. 2013) 4; People v. Carp, 307,758 (Mich.App. 11/15/12), 828 N.W.2d 685.

WRIT GRANTED AND MADE PEREMPTORY.

4

This case can be found at the following citation: 2013 WL 69128.

13