Opinion

Com. v. Brooks, R.

Court
Superior Court of Pennsylvania
Filed
May 27, 2026
Status
Unpublished
Author
Bowes
On the bench
Lazarus; Bowes
Cited by
0 cases
Authority
More cited than 40.7%

The opinion

J-S22029-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

RANDALL DOUGLAS BROOKS :

:

Appellant : No. 1546 MDA 2024

Appeal from the PCRA Order Entered September 17, 2024

In the Court of Common Pleas of Centre County Criminal Division at

No(s): CP-14-CR-0000141-2012

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

RANDALL DOUGLAS BROOKS :

:

Appellant : No. 1547 MDA 2024

Appeal from the PCRA Order Entered September 17, 2024

In the Court of Common Pleas of Centre County Criminal Division at

No(s): CP-14-CR-0001515-2011

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

RANDALL DOUGLAS BROOKS :

:

Appellant : No. 1548 MDA 2024

Appeal from the PCRA Order Entered September 17, 2024

In the Court of Common Pleas of Centre County Criminal Division at

No(s): CP-14-CR-0000568-2011

J-S22029-25

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

RANDALL D. BROOKS :

:

Appellant : No. 1549 MDA 2024

Appeal from the PCRA Order Entered September 17, 2024

In the Court of Common Pleas of Centre County Criminal Division at

No(s): CP-14-CR-0001927-2010

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

RANDALL DOUGLAS BROOKS :

:

Appellant : No. 1550 MDA 2024

Appeal from the PCRA Order Entered September 17, 2024

In the Court of Common Pleas of Centre County Criminal Division at

No(s): CP-14-CR-0002130-2010

BEFORE: LAZARUS, P.J., BOWES, J., and STEVENS, P.J.E.*

DISSENTING MEMORANDUM BY BOWES, J.: FILED: MAY 27, 2026

As I believe that the learned majority both misapplied the structural

error doctrine and ignored the prevailing legal framework in granting Appellant

relief under the Post-Conviction Relief Act, I respectfully dissent.

____________________________________________

* Former Justice specially assigned to the Superior Court.

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J-S22029-25

It is beyond cavil that Stacy Parks Miller, Esquire, then District Attorney

of Center County, and the Honorable Bradley P. Lunsford both violated public

trust and dishonored the legal profession and their respective offices.

However, as an error correcting court, our directive is not to review the ethics

of those actions; that is for the respective boards of conduct, which were

created to address those precise issues.1 We are simply tasked with

determining whether Appellant established that he is entitled to a new trial

pursuant to the PCRA. For the reasons explained infra, I would hold that he

did not.

Appellant’s PCRA petition claimed that the prosecutor and trial judge

violated his constitutional rights by engaging in ex parte communications

during his 2012 criminal prosecution. See PCRA Petition, 9/27/19 at 10. In

this vein, he sought substantive relief pursuant to 42 Pa.C.S. § 9543(a)(2)(i),

alleging a constitutional violation that so undermined the truth-determining

process that no reliable adjudication of guilt or innocence could have taken

place.2

____________________________________________

1 Indeed, on December 6, 2018, the Disciplinary Board of the Supreme Court

of Pennsylvania filed a report and recommendation to suspend Attorney

Miller’s license for one year. It does not appear that the Judicial Conduct

Board of Pennsylvania filed a case with the Court of Judicial Discipline against

Judge Lunsford, who retired in in 2015.

2 Section 9543(a)(2)(i) delineates PCRA eligibility as follows:

(Footnote Continued Next Page)

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The PCRA court ultimately denied relief on the merits of Appellant’s

substantive claim. It reasoned:

We have reviewed the lengthy transcribed record of the trial

in this case. In our view, Judge Lunsford navigated the shoals

between a vigorous and sometimes petulant prosecutor and an

untrained pro se litigant with impartiality. We are unable to

discern any evidence of an improper outside influence, let alone

one that proved detrimental to the defendant. In fact, Judge

Lunsford dealt with the defendant’s legal missteps with

considerable patience and equity. We can find no evidence of

bias in either his rulings or his charge to the jury.

See PCRA Opinion, 9/16/24, at 8 (quoting PCRA Opinion, 4/28/22, at 6-7)

(emphases added).

In reversing the PCRA order, the majority acknowledges that the PCRA

court reviewed the record and found no evidence that the communications

affected Judge Lunsford’s rulings. The majority further observed that the

Pennsylvania Supreme Court determined ex parte communications do not

____________________________________________

(a)General rule.--To be eligible for relief under this subchapter,

the petitioner must plead and prove by a preponderance of the

evidence all of the following:

....

(2) That the conviction or sentence resulted from one or

more of the following:

(i) A violation of the Constitution of this Commonwealth or

the Constitution or laws of the United States which, in the

circumstances of the particular case, so undermined the

truth-determining process that no reliable adjudication of

guilt or innocence could have taken place.

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implicate the structural error doctrine; rather, a petitioner is still required to

demonstrate harm, i.e., that it is likely to prejudice a party, in order to warrant

relief. See Commonwealth v. Bradley, 459 A.2d 733 (Pa. 1983).

Nevertheless, the majority finds a structural error in this case, not due to any

nuance in the structural error doctrine, but because Judge Lunsford did not

maintain adequate records of the exchanges. See Majority Memorandum at

18 (“in this instance where the trial judge failed to maintain an accurate and

reviewable contemporaneous record of its ex parte communications, we may

imply prejudice even where arguably none exists.) (cleaned up) (citation and

quotations omitted).3

I respectfully reject this conclusion for three reasons insofar as the

majority’s analysis: (1) misapprehends the relevant legal authority that

applies specifically to ex parte communications; (2) contravenes the

structural-error framework that our High Court set forth in Commonwealth

v. Taylor, 309 A.3d 754, 780 (Pa. 2024); and (3) ignores Appellant’s

argument applying that legal framework to his claim that the instant

exchanges were structural error, not because of some clerical shortcoming,

____________________________________________

3 To be clear, while the majority contends “Under the instant facts, it is

undisputed that [Appellant’s] due process rights were violated and the ex

parte communications between the prosecutor and trial judge constitute

structural error[,]” the Commonwealth has consistently asserted that

structural error does not apply. See e.g. Commonwealth’s brief at 5

(“[Appellant’s] attempts to shoehorn the case under a "structural error" theory

are misguided.”).

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but due to an appearance of impropriety. See Appellant’s brief at 32-40, 47

(arguing the alleged transgression implicates an appearance of impropriety

that is so fundamentally unfair that it is tantamount to structural error, which

warrants relief regardless of prejudice.). I address my concerns in succession.

Bradley involved a trial judge’s ex parte response to a jury question

during deliberations. Having determined that the defendant failed to prove a

reasonable likelihood of prejudice due to the court’s interaction with the jurors,

the Supreme Court held “only those ex parte communications between a court

and jury which are likely to prejudice a party will require reversal.” See

Bradley, 459 A.2d at 734 (Pa. 1983) (emphasis added). Critically, in

overruling Argo v. Goodstein, 228 A.2d 195 (Pa.1967), its prior precedent

stating that judge/jury ex parte interaction warranted reversal regardless of

harm, the Supreme Court in Bradley adopted as law the rationale that then-

Justice Roberts provided in his dissenting opinion addressing this issue in

Yarsunas v. Boros, 223 A.2d 696, 698 (Pa. 1966) (Roberts, Justice

(dissenting):

The reason for prohibiting a trial judge from communicating with

a jury ex parte is to prevent the court from unduly influencing the

jury and to afford counsel an opportunity to become aware and to

seek to correct any error which might occur. Where there is no

showing either that the court's action may have influenced the

jury or that its directions were erroneous, then the reason for the

rule dissolves.

See Bradley, 459 A.2d at 736 (cleaned up). Hence, our Supreme Court has

held that no relief is warranted in these cases absent an indication of influence.

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Later, in Commonwealth v. Barnyak, 639 A.2d 40, 44 (Pa.Super.

1994), this Court interpreted an ex parte communication between a judge and

prosecutor as requiring “evidence of influence” in order to warrant relief. The

High Court subsequently endorsed both Bradley and Barnyak in

Commonwealth v. Carpenter, 725 A.2d 154, 169 n.9 (Pa. 1999)4, albeit in

a case involving the dual conclusion that the at-issue exchange between the

trial court and the prosecution was not an ex parte communication under the

circumstances of that case and that the defendant did not claim a likelihood

of harm. That capital appeal docket proceeding involved the Supreme Court’s

review of a PCRA order denying, inter alia, Carpenter’s assertion that the trial

court violated his due process by engaging in ex parte communications with

the District Attorney about jury instructions. In denying relief, the PCRA court

had concluded that the exchange was not an ex parte communication because

it involved merely a procedural aspect of the case and the court had a similar

discussion with Carpenter and his attorney the following day. Id. at 169. The

High Court agreed, holding that the circumstances of the progressive

____________________________________________

4 Notwithstanding our High Court’s clear ratification, the majority refuses to

follow the obvious precedential authority of our holding in Commonwealth

v. Barnyak, 639 A.2d 40 (Pa.Super. 1994) because the relevant discussion

was bereft of legal analysis. See Majority Memorandum at 17 n.16.

Coincidentally, without providing a hint of legal authority for this proposition,

the majority baldly posits, “Without any support, we cannot conclude that

[Barnyak] supports the PCRA court’s ruling.” Id. The incongruity between

the majority’s attempt to circumvent Barnyak for a lack of analysis and its

own failure to present legal authority to support that principle is telling.

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exchanges “coupled with the absence by Appellant of any claim of prejudice

because of the communication, convinces us that this claim is without merit.”

Id. at 169 (emphasis added).

However, as the majority highlights as the cornerstone of its legal

analysis, in announcing its holding that a defendant was required to

demonstrate a likelihood of harm to warrant relief for an ex parte

communication, the Bradley Court acknowledged the reality that in some

instances where the content of the communication is unknown, it would be

difficult to establish harm. The High Court cautioned, “We do, however,

remind the trial bench that failure to maintain an accurate and reviewable

contemporaneous record of all instructions and communications between the

court and a jury may force an implication of prejudice where arguably none

exists.” Bradley, 459 A.2d at 739.

What the majority characterizes as the Bradley Court’s “qualification”

of its decision to find ex parte communications subject to the harmless error

analysis is simply the High Court’s acknowledgement of the difficulty proving

prejudice where there is no evidence regarding the substance of the

communication. In that situation, the Supreme Court determined that it was

reasonable to imply the substance of communication was, in fact, harmful.

However, that is not what occurred in this case. Indeed, the essence of the

prosecutor’s missives to Judge Lunsford are undisputed: she repeatedly

chastised him for what she viewed as adverse rulings. See Majority

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Memorandum at 13 (“At the very least, we have evidence that the prosecutor

complained to the trial judge, during [the] trial, about the way the judge was

handling objections and the trial in general.”); PCRA Opinion, 4/28/22, at 5

(“According to [the affiant], during the break Judge Lunsford stated . . . that

[Attorney] Miller was “bitching to him” in text messages about the way [he]

was handling some objections and handling the trial.”). Hence, the

evidentiary dilemma that the Bradley court sought to avoid in some cases

involving a judge’s ex parte communication with the jury simply is not present

in the case at bar. While invoking this safety net to undermine the Bradley

Court’s unequivocal decision to require a demonstration of harm, the majority

both ignores the gist of the prosecutor’s messages to Judge Lunsford and fails

to present any feasible reason why the lack of a contemporaneous record of

those messages would have any bearing on this case, considering the

acknowledged tenor of the ex parte communications. Thus, I find

unconvincing the majority’s reliance upon the Bradley Court’s supposed

qualification, in defiance of authoritative precedent concluding that a violation

of due process based on an ex parte communication between a judge and

either the jury or prosecution is not structural error. See e.g., Barnyak, and

Carpenter.

Having explained the shortcomings with my colleagues’ position that the

ex parte communication is tantamount to structural error, notwithstanding the

Bradley Court’s holding to the contrary, I next address Appellant’s wholly

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separate argument that the ex parte communication should be considered

structural error because it implicates an appearance of impropriety, which he

asserts always results in fundamental unfairness.5 See Appellant’s brief at 8,

37-39. Although the majority does not address the merits of Appellant’s

contention, it does state, in conclusory fashion, “Because it is well established

that judicial bias is a violation of due process, under the specific facts of this

case, we conclude that [Appellant] should be afforded PCRA relief and granted

a new trial.” Majority Memorandum at 13 (cleaned up) (internal citations and

quotations omitted). For the reasons outlined infra, I reject the majority’s

inference that the record will sustain a finding of trial court bias.

I begin with a refresher on structural error. In Taylor, our Supreme

Court outlined the three categories of trial court error that are prejudicial per

se: “(1) when the constitutional right is one which does not protect against

erroneous conviction, but instead protects some other interest; (2) when the

effects of the violation are too hard to measure; or (3) when the violation will

always result in fundamental unfairness.” Id. at 780. The Court expounded

upon each of these categories thusly:

The first was a violation of a constitutional right that is not

designed to protect the defendant from erroneous conviction but

instead protects some other interest, such as, for example, the

right of an individual to conduct his or her own defense, inasmuch

as impairment of that right contravenes the legal principle

undergirding the constitutional guarantee – namely, that a

____________________________________________

5 Indeed, Appellant does not refer to the Supreme Court’s holding in Bradley

once in his entire brief.

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defendant has the fundamental right to make choices regarding

the protection of his or her own liberty.

The second category concerned those situations where “the

effects of the error are simply too hard to measure,” for instance,

where a defendant is denied the right to proceed with counsel of

his or her choosing. . . . [I]n such situations, the precise effect of

the violation cannot be ascertained,” and because the government

will, as a result, find it almost impossible to show that the error

was harmless beyond a reasonable doubt, the efficiency costs of

letting the government try to make the showing are unjustified.

Finally, . . . an error would be deemed structural if the error

always results in fundamental unfairness. For example, if an

indigent defendant is denied an attorney or if the judge fails to

give a reasonable-doubt instruction, the resulting trial is always a

fundamentally unfair one. It therefore would be futile for the

government to try to show harmlessness.

Id. at 777–78 (cleaned up) (citations and internal quotation marks omitted).

Appellant’s argument invokes the third category of error, one which

always results in fundamental unfairness.6 He dedicates the majority of his

argument to In Interest of McFall, 617 A.2d 707 (Pa.1992) and Joseph v.

Scranton Times L.P, 987 A.2d. 633 (Pa. 2009), two cases that concern not

ex parte communications, but judicial corruption and the outright failure to

disclose an obvious bias. I discuss these cases seriatim.

____________________________________________

6 The majority’s characterization of Bradley’s “qualification” implicates the

second category of harmless error outlined in Taylor, concerning instances

where the effects of the error are too hard to measure. Even considering that

the categories may overlap in certain cases, as stated in the body of the

dissent, I find unpersuasive the majority’s preoccupation with the lack of a

reviewable contemporaneous record in this case.

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McFall involved a trial judge’s failure to disclose to twenty-nine criminal

defendants that she was actively working as an FBI informant while presiding

over their prosecutions. Id. at 710. The twenty-nine defendants argued that

the judge “could not have been impartial in discharging her judicial functions

where she was beholden to one of the parties appearing before her.” Id. at

712. Our High Court agreed. In affirming the order awarding new criminal

proceedings, it found “[t]he circumstances under which [the judge]

participated as an ‘agent’ of both the judiciary and the prosecution created an

environment of partiality which is unacceptable.” Id. at 713. The Court

continued,

[i]n this case the appearance of bias is obvious. [The judge’s]

agreement with the prosecutorial arm was a quid pro quo bargain.

She agreed to assist the F.B.I. in their racketeering investigation,

while the F.B.I. promised to make [her] cooperation known to the

Pennsylvania authorities who would conduct [her] prosecution[.]

Moreover, these same Pennsylvania authorities were the very

authorities who appeared before [the judge] to prosecute the

[twenty-nine defendants]. Consequently, this obvious conflict of

interest eradicated the appearance of justice in [the judge’s]

courtroom.

Id.

Our Supreme Court relied upon McFall in Joseph v. Scranton Times

L.P., 987 A.2d 633 (Pa. 2009), which Appellant cites for the proposition that

the appearance of impropriety is sufficient to warrant relief in this case. In

that defamation case implicating the two jurists involved in the Luzerne

County “Kids for Cash” scandal, former President Judge Michael T. Conahan

and former Judge Mark A. Ciavarella, the High Court assumed plenary

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jurisdiction over the case pursuant to its King’s Bench authority. The issue of

impropriety arose after it came to light that the judges, one of whom assigned

the case to the other, were engaged in judge-shopping and co-conspirators in

a scheme involving two private juvenile facilities in which they held a financial

interest. In finding that judicial impropriety existed in the trial of the

underlying defamation case, the High Court employed McFall to conclude that

a new trial was warranted “to remedy the pervasive appearance of impropriety

... and to give justice, and the appearance of justice, an opportunity to

prevail.” Id. at 682. The Supreme Court summarized the evidence of

impropriety thusly,

[Scranton Times] adequately demonstrated that, in response to

[its] repeatedly voiced concerns [about] judge-shopping to have

Ciavarella assigned to preside over this matter, both Conahan and

Ciavarella reassured [it] that the case would be assigned

randomly for trial. The evidence adduced at the hearing, however,

showed these reassurances to be misleading, or even plainly false,

as such random assignment did not occur as a matter of course in

Luzerne County at that time, and certainly did not occur in this

case. Indeed, the manner in which Ciavarella was assigned to

preside over this case was so unusual that the long-time Luzerne

County Deputy Administrator of Civil Trials noted on the docket

that Conahan and William Sharkey, the former Court

Administrator for Luzerne County, who is Conahan’s cousin

(Sharkey has since resigned in the wake of federal corruption

charges), had hand-assigned the case. The Deputy Administrator

stated that she was motivated to make this unusual notation

because she wanted to afford herself some protection.

Id.

Thereafter, the Hight Court concluded,

It bears repeating: a jurist is either fair or unfair; there are no

acceptable gradations. This case was assigned by Conahan,

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through Sharkey, to Ciavarella for trial. After rendering a series

of evidentiary decisions against [the defendants], Ciavarella

returned a bench trial verdict in favor of [the plaintiffs] in the

amount of $3.5 million. The inherently troubling nature of

Conahan’s and Ciavarella’s compromised positions as jurists is

enhanced, in this case, given that the subject matter of this

defamation lawsuit concerned newspaper articles reporting on the

undisputed fact of a federal criminal investigation into [the

plaintiff’s] alleged ties to organized crime activities . . . [.]

Id. at 682-83.

Plainly, both McFall and Scranton Times stand for the proposition that

a demonstration of obvious judicial bias obviates the need to establish actual

prejudice. In those cases, the mere appearance of impropriety is sufficient

because the jurists’ bias is palpable. However, notwithstanding Appellant’s

assertions, the record in the case at bar does not bear out obvious judicial

bias. Indeed, as summarized, infra, the record supports the PCRA court’s

contrary finding that Judge Lunsford remained impartial.

Appellant failed to allege any facts, let alone advance any evidence,

tending to show bias, prejudice or unfairness on the part of the trial court

judge. In short, in contrast to the facts underlying Taylor, McFall, and

Scranton Times, the circumstances herein did not raise an appearance of

partiality that would have warranted a new proceeding. First, unlike the basis

for Appellant’s claim for relief in the case sub judice, none of those cases

implicated an ex parte communication. For example, in Taylor, the High

Court examined “a juvenile court violat[ion of] a juvenile’s Fifth Amendment

right by . . . conditioning its ultimate finding of the juvenile’s amenability to

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treatment. . . upon a requirement that the juvenile admit guilt for the offenses

he is alleged to have committed[.] ” Taylor, 309 A.3d at 783. In finding a

fundamental unfairness in that situation, the Court reasoned, “By imposing

such a manifestly improper requirement, a juvenile court has, in effect,

created an irrebuttable presumption that, if the juvenile refuses to incriminate

himself, he is not amenable to treatment, supervision, and rehabilitation, no

matter what the other competent evidence of record demonstrates.” Id. It

concluded, “[t]his type of constitutional violation therefore inevitably disrupts

the framework of the certification process because of its distortive effect on

the entirety of the juvenile court’s decision-making process.” Id. As our High

Court gathered in Carpenter, by conditioning relief, at least in part, upon

evidence of influence, there is no such distortive effect inherent to ex parte

communications. Additionally, no indication can be drawn from the Taylor

Court’s holding or rationale that it sought to overrule this line of cases by

applying the doctrine of structural error to these violations and alleviating the

need to establish actual prejudice.

Moreover, as it relates to the remaining cases Appellant cites in support

of applying structural error, Judge Lunsford’s receipt of Attorney Miller’s ex

parte communications does not implicate obvious bias and corruption based

upon a judge’s quid-pro-quo cooperation with law enforcement in the hopes

of easing her own criminal culpability, or a pair of dishonest jurists channeling

cases to one another for their own pecuniary gain. While those situations

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involve clear conflicts of interest that created an environment of patent

partiality, in no way is the bias inherent in those matters akin to Judge

Lunsford’s failure to disclose his receipt of text messages from Attorney Miller

complaining about unfavorable rulings. Indeed, as the Commonwealth

highlights, the fact that “the rulings were cutting against . . . [A]ttorney

[Miller] demonstrates the trial judge’s impartiality had not been compromised,

despite the ex parte communications.” Commonwealth’s brief at 17-18.

In sum, Appellant’s position is founded upon cases that address the

appearance of impropriety stemming from judicial bias and corruption.

However, the case at bar implicates neither of those transgressions. Rather,

this matter concerns ex parte communications, and the dispositive legal

authority addressing ex parte communications precludes relief absent

evidence of influence, i.e. prejudice. See e.g., Bradley, Barnyak, and

Carpenter.

I hasten to agree with the learned majority that Judge Lunsford’s failure

to disclose to Appellant Attorney Miller’s ex parte communications is both

abhorrent and violative of Appellant’s right to due process. However, neither

of those truths constitutes structural errors. In addition, unlike the facts

underlying the cases that Appellant invokes, the violation of due process did

not undermine the entirety of the court’s decision-making process and there

simply is no evidence that the communications influenced Judge Lunsford in

any manner. Stated plainly, insofar as Appellant failed to present evidence of

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judicial influence in this case, he cannot satisfy the PCRA’s requirement to

demonstrate that the alleged violation “so undermined the truth-determining

process that no reliable adjudication of guilt or innocence could have taken

place.” 42 Pa.C.S § 9543(a)(2)(1). Accordingly, in contrast to my esteemed

colleagues, I would conclude that the PCRA court did not err in denying

Appellant’s claim for relief on that basis. Therefore, I respectfully dissent.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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