Court News Ohio
Court News Ohio
Court News Ohio

Tuesday, April 18, 2023

In re application of Alamo Solar I LLC and In re application of Angelina Solar I LLC, Case Nos. 2022-0053 and 2022-0054
Ohio Power Siting Board

State of Ohio v. Eric Johnson, Case No. 2022-0488
Eighth District Court of Appeals (Cuyahoga County)

Ryan McCullough v. Joseph E. Bennett, Case No. 2022-0879
Second District Court of Appeals (Montgomery County)

Disciplinary Counsel v. Judge Daniel Gaul, Case No. 2022-1515
Cuyahoga County

Did Solar Energy Facility Proposals Comply With State Rules?

In re application of Alamo Solar I LLC and In re application of Angelina Solar I LLC, Case Nos. 2022-0053 and 2022-0054
Ohio Power Siting Board

ISSUES: Did the Ohio Power Siting Board fail to follow its own rules when approving two large-scale solar power generating facilities in Preble County?

In December 2018, the parent company of Alamo Solar I and Angelina Solar I submitted applications to the Ohio Power Siting Board to construct solar generation facilities in Preble County. Angelina Solar proposes to occupy 827 acres within a 934-acre project area in Israel and Dixon townships and produce 80 megawatts (MW) of power. Alamo is proposed to occupy 919 acres within a 1,002-acre project area and produce 70 MW of power. Both facilities will include access roads, weather stations, buried electrical lines, electrical substations, and inverters, which convert the power from the solar panels to electrical currents.

The projects are opposed by the Concerned Citizens of Preble County, which includes 67 people and family-farm owners whose properties are next to the project areas or who live and work near the proposed solar farms. After the power siting board conducted hearings on the project and heard the concerns of opponents, the solar farm developers submitted “amended stipulations” to the board. Those stipulations represented the compromises reached by the siting board staff with several other parties, including the Preble County Commissioners, the county planning commission, and the township trustees in the four townships where the farms are located.

In June 2021, the siting board approved the applications for Alamo and Angelina. Both certificates of approval contained several conditions that the developers must meet as they construct and operate the solar farms. The Concerned Citizens opposed the project even with the changes and conditions. The board rejected the opponent’s arguments and gave final approval to the plan in November 2021. The citizen group appealed to the Supreme Court of Ohio, which is required to hear appeals of board decisions.

Project Will Harm Neighbors and Wildlife, Opponents Assert
The concerned citizens raise the same six objections to both projects:

  • The solar panel arrays are not set back far enough from the surrounding property.
  • The developer hasn’t properly calculated the noise damage.
  • Inadequate measures to reduce the visual impacts of the project were approved.
  • A lack of wildlife surveys will result in unknown potential harm to wildlife.
  • Threats of flooding weren’t properly addressed.
  • Soil erosion and runoff from the project could pollute the surrounding area.

The opponents argue that, under R.C. 4906.10(A), the board could only certify the projects if it determines the “nature of the probable environmental impact,” and that the “facility represents the minimum adverse environmental impact, considering the state of available technology” and any other viable alternatives.

The group contends that the project applications are missing key data to assess whether the projects pose health or safety risks to the area. The board addressed the lack of information not by delaying approval until the developers presented it, but rather by adding conditions to the permit that direct the company to make adjustments in the construction or operations if health or safety problems arise. That process shuts out the neighbors from having meaningful input on any necessary changes, the opponents argue. The group maintains the board isn’t following its own administrative rules by not insisting on the information before approving the certificates. The opponents urge the Court to reject the permits and require the board make all the necessary findings before allowing construction to proceed.

Projects Warranted Approval, Board Maintains
The board notes that no new energy generation facility is free from environmental impacts, but the board’s charge is to approve projects with the least environmental impact as possible.

The developer of Alamo and Angelina met with the board staff, local leaders, and the community to address concerns and made several modifications that are supported by a broad range of interested parties, the board asserts. The opponents criticize the board for failing to follow all of its administrative rules when granting the certificate, but the board notes it used its authority to waive rules when it believed it was necessary. The board notes that the projects followed all of the requirements of state law and that the developer addressed all the concerns raised by the opposition.

The board also notes that its practice of conditionally granting certificates then requires oversight of the board staff and further board approvals, and has been authorized by the Supreme Court for more than a decade. The board points to the Court’s 2012 In re Buckeye Wind decision, which states that R.C. 4906.10(A) allows certificates to be issued with conditions the board considers appropriate. The law authorizes a “dynamic process” that doesn’t end with the issuance of the construction certificate, the Court stated. The board notes the law allows its staff to monitor compliance with the conditions and to authorize the board to take action if the developers don’t meet the conditions.

Projects Benefit Community, Developer Maintains
The Court permitted the company developing the solar farms to intervene in the case and argue on its own behalf. The developer maintains the board conducted a painstaking review of its applications and considered the objections of the landowners. The company worked with the board staff and others to address the concerns and modified the plans. The developer argues the opponents want to contest factual issues about the application that have already been decided in favor of the developer twice by the board. The opponents are attempting to repackage the factual arguments as legal arguments for the Court to consider, but the Court should reject this attempt to second-guess the board, the company asserts.

The developer notes the projects not only advance the state’s goal of increasing the production of renewable energy, but also provide many local benefits as well, including significant job creation. The company estimates each project would create about 500 to 900 construction-related jobs and 35 permanent jobs related to the two facilities. The Angelina project could generate about $162 million in economic impact during construction and $1.5 million annually from operations, the developer estimates. The Alamo project could produce $58 million to $151 million in economic output during the construction phase and between $1.2 million and $15 million annually, based on developer projections.

The board examined all the requirements the facilities must meet under the law, and the opponents have failed to show the board willfully disregarded its duty, the developer asserts. The Court should affirm the board’s approval, the company concludes.

Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket (case nos. 2022-0053 and 2022-0054)

Representing Concerned Citizens of Preble County: Jack Van Kley,

Representing the Ohio Power Siting Board from the Ohio Attorney General’s Office: Werner Margard III,

Representing Angelina Solar I and Alamo Solar I: Michael Settineri,

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Was Offender Entitled to Hearing After Victim Recanted Eyewitness Identification?

State of Ohio v. Eric Johnson, Case No. 2022-0488
Eighth District Court of Appeals (Cuyahoga County)

ISSUE: Were a defendant’s constitutional rights to due process and a fair trial violated when a trial court denied his request to consider new evidence, given the Supreme Court of Ohio’s 2022 ruling in State v. Bethel?

James Keith was walking home in Cleveland in the early morning hours of Aug. 26, 2012, when he was approached by two men. One of them put a gun to the back of his head, and Keith was robbed. As Keith started to run away, he was shot in the leg and multiple times in the stomach. He was found lying in the street by a motorist, who called for help. Police officers arrived, and Keith was transported to a hospital, where he spent several months, including a month in a coma.

After Keith awoke, police interviewed him. He said he had been shot by “E,” who was accompanied by “Junior.” He said he only knew them by their nicknames. Keith told police his niece knew E, and E had a Facebook account. Police put together a photo array, and Keith identified Eric Johnson as E and John Alexander as Junior.

Johnson was charged, and his case went to trial. Keith testified that he turned around during the robbery and saw the person who was holding a gun to his head. It was Johnson, he said.

The jury found Johnson guilty on multiple counts. The trial court sentenced him to 21 years in prison for aggravated robbery, attempted murder, petty theft, and a firearm specification.

Johnson appealed to the Eighth District Court of Appeals, which upheld his convictions and sentences.

Defendant Raises Legal Issues After Conviction
In December 2013, Johnson asked the trial court for postconviction relief. The court didn’t hold a hearing and denied his petition. He filed another petition in June 2017, and the trial court rejected it. Each denial was appealed, and the Eighth District upheld the trial court decisions.

Johnson filed another postconviction petition in November 2020, arguing he had discovered new information and requesting a hearing on the evidence. He included an affidavit from Keith, who stated he felt pressured by police to testify against Johnson even though Keith wasn’t certain that Johnson had shot him. Keith said he carried an incredible weight over the years because he believed he identified the wrong person.

The trial court dismissed the petition in February 2021 without a hearing. In January 2022, the Eighth District upheld the decision. One judge dissented, concluding that a hearing should be held.

In March 2022, the Supreme Court of Ohio released its decision in State v. Bethel. Based on that ruling, Johnson appealed the Eighth District decision denying his petition to the Supreme Court of Ohio, which agreed to review the issue.

Bethel Ruling Supports Hearing Petition Offering New Evidence, Petitioner Asserts
A petition asking for postconviction relief must be filed within timeframes set in Ohio statutes, except in certain circumstances. One circumstance is when the person filing a petition can show they were “unavoidably prevented from discovery of the facts” that led to the new legal claim and that “no reasonable factfinder would have found the petitioner guilty” if the trial error affecting the person’s constitutional rights hadn’t happened.

In Johnson’s view, Bethel established that the state carries the burden of proving a defendant could have raised the new claim sooner. The Court also concluded that defendants don’t need to show the evidence couldn’t have been discovered had they exercised reasonable diligence.

The Eighth District concluded that Johnson should have discovered Keith’s concerns earlier, before Keith provided the affidavit. But the Eighth District didn’t have the benefit of the Bethel opinion, which determined a defendant doesn’t have this burden, Johnson states.

He notes that Keith, the key witness at trial, has changed his testimony through an affidavit. Keith stated he was always unsure of his identification of Johnson and was under police pressure. Johnson also maintains he had no reason to suspect that police pressured Keith. Johnson argues that this new evidence from Keith is relevant to the case and compromises the integrity of the conviction.  He contends that the appropriate step is to vet these issues during an evidentiary hearing.

Johnson argues that without Keith’s eyewitness identification and testimony, no reasonable judge or jury would have returned a guilty verdict. If Keith lied or was coerced, Johnson maintains that his constitutional rights to due process and a fair trial were violated. He is entitled to a hearing on his petition, he concludes.

Statute Requires More Information Than Was Provided, State Maintains
The Cuyahoga County Prosecutor’s Office asserts that Johnson hasn’t met the requirements in the statute. The prosecutor argues Johnson failed to explain why he was unavoidably prevented from discovering the facts presented by Keith in the 2020 affidavit. Keith’s statements don’t indicate when he first came forward with his misgivings, with whom he spoke, and what led him to submit an affidavit, the prosecutor notes. Nothing explains why Johnson couldn’t have contacted Keith earlier or whether Keith would have refused or been unable to prepare an affidavit before 2020, the prosecutor contends.

The office maintains that Johnson had to provide evidence with specific facts to support his claim, including why he couldn’t have learned earlier about Keith’s uncertainties. According to the prosecutor, the direction from Bethel that the state must show a defendant could have made the claim sooner applies only when the state argues the claim is barred by res judicata, but that wasn’t argued in this case.

Johnson also failed to establish an error was made that violated his constitutional rights, the prosecutor argues. Although Johnson alleges police misconduct, he doesn’t present adequate evidence to support a due process violation, the prosecutor maintains. The office’s brief states that affidavits from recanting witnesses “are viewed with the utmost suspicion” and that the trial court is the best judge of the credibility of the statements. Given Keith’s clear and repeated statements at trial about what happened when he was shot, the trial court found his recantation in 2020 wasn’t credible, the brief concludes.

Public Defender and Attorney General File Briefs
An amicus curiae brief supporting Johnson’s views was submitted by the Cuyahoga County Public Defender’s Office.

The Ohio Attorney General’s Office filed an amicus brief supporting the Cuyahoga County prosecutor. The attorney general will share the 15 minutes allotted to the county prosecutor for oral argument.

Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing Eric Johnson: Joseph Pagano,

Representing the State of Ohio from the Cuyahoga County Prosecutor’s Office: Gregory Ochocki,

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Was Personal Injury Lawsuit After Car Accident Refiled Too Late?

Ryan McCullough v. Joseph E. Bennett, Case No. 2022-0879
Second District Court of Appeals (Montgomery County)


  • Does R.C. 2305.19(A), the “savings” statute that allows one more year to refile a personal injury lawsuit, restrict how many times the case can be refiled?
  • If a court dismisses a case during a one-year timeframe allowed for notifying the defendant of the lawsuit, does the savings statute extend the time to “commence” the lawsuit?

Ryan McCullough filed a personal injury lawsuit against Joseph Bennett based on a vehicle accident on April 27, 2017. McCullough alleged that he suffered injuries when Bennett drove through a red light and hit McCullough’s vehicle.

McCullough’s lawsuit was filed on Jan. 15, 2018, in Montgomery County Common Pleas Court. McCullough attempted to deliver notice of the lawsuit to Bennett by FedEx at a Miamisburg address, where Bennett lived when the accident happened. The documents were returned as undeliverable. The court dismissed the complaint in February 2018.

McCullough filed his complaint again on June 27, 2018, and tried to serve Bennett at the same Miamisburg address via FedEx and U.S. certified mail. Both methods were unsuccessful. McCullough states that he also attempted to serve Bennett by publishing a notice in a Dayton newspaper. Bennett didn’t respond to the notice, and McCullough took no further action, so the court dismissed the case in November 2018.

On Sept. 12, 2019, McCullough refiled his complaint. He attempted to notify Bennett of the lawsuit by certified mail and U.S. mail at the same Miamisburg address.

Defendant Explains That He Moved in 2017
The court issued a default judgment in McCullough’s favor and awarded damages to him. But Bennett subsequently showed that he hadn’t resided at the Miamisburg address since late May 2017. Bennett had sold his Miamisburg property and lived in Middletown until December 2018. He then moved to Indianapolis. Bennett also asked the court to dismiss the lawsuit because it was filed after April 27, 2019, which was when the two-year statute of limitations expired. The trial court agreed and dismissed the case.

McCullough appealed to the Second District Court of Appeals, which reversed the trial court.

Bennett appealed to the Supreme Court of Ohio, which agreed to review the issues.

Filing Rules for Personal Injury Lawsuits
According to court rules for civil cases, a “civil action is commenced by filing a complaint with the court, if service is obtained within one year from such filing upon a named defendant.”

Personal injury lawsuits must be filed within two years. A state law, R.C. 2305.19(A), offers some flexibility on the deadline. If a complaint is dismissed for reasons other than the merits, the plaintiff “may commence a new action within one year” after the case dismissal or within the original statute of limitations – whichever is later. The law is referred to as a “savings statute.”

Relocated Driver Argues Refiling Is One Time Only Regardless of Two-Year Deadline
The Second District determined that the extra year allowed by the savings statute isn’t for cases that are refiled before a statute of limitations expires. Bennett disagrees, arguing the savings statute allows a plaintiff to refile the complaint only one time, which can be done before or after the two-year statute of limitations. McCullough had already refiled his complaint in June 2018, so he couldn’t refile the complaint for a third time, Bennett maintains. He notes that this “one use” of the savings statute helps minimize a defendant’s exposure to ongoing refilings by plaintiffs who miss deadlines.

Bennett also argues the savings statute can be invoked only for a case dismissed after the statute of limitations expires, which was in April 2019 in this case. McCullough’s first two complaints were dismissed before April 2019, Bennett notes.

He further contends that McCullough didn’t properly “commence” the lawsuits because he repeatedly failed to properly serve the complaints despite receiving notices that the mailings were undeliverable. Bennett notes that the trial court directed McCullough not to serve the documents to addresses already found to be undeliverable. Bennett argues McCullough didn’t reasonably try to notify him of the lawsuits because McCullough kept sending them to the wrong address, taking away Bennett’s opportunity to respond.

Injured Driver Contends That One-Time Only Refiling Applies After Deadline
McCullough asserts that the opportunity in the savings statute to refile begins after the statute of limitations deadline. The one-time refiling doesn’t apply to cases, such as his June 2018 complaint, that are refiled before the statute of limitations expires, he contends. The purpose of the savings statute is to permit plaintiffs to refile a dismissed complaint that would otherwise be too late because of the statute of limitations, he argues. The savings statute permitted him to refile his case by November 2019, one year after the November 2018 dismissal of the second complaint, McCullough maintains.

He states that an earlier version of the savings statute gave one more year to refile a case only if the court dismissed the case after the statute of limitations expired. But a 2004 amendment to the law changed that requirement, he notes, for reasons unrelated to this appeal. Because the requirement no longer exists, Bennett can’t successfully argue it applies to this case, McCullough contends.

McCullough also disputes the view that the complaint wasn’t “commenced” because the service of the complaints to Bennett failed. McCullough maintains that the trial court concluded that the service was completed through the newspaper publication. He argues that Bennett’s assertions about service fail because Bennett was served.

Legal Group Submits Additional Brief
The Ohio Association of Justice, an organization of plaintiff attorneys who handle civil cases, filed an amicus curiae brief in support of McCullough’s views.

Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing Joseph E. Bennett: Jonathon Beck,

Representing Ryan McCullough: Robert Gresham,

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Cleveland Judge Faces Suspension for Misconduct Over Five Years

Disciplinary Counsel v. Judge Daniel Gaul, Case No. 2022-1515
Cuyahoga County

The Board of Professional Conduct recommends a one-year suspension for Judge Daniel Gaul of the Cuyahoga County Common Pleas Court. The board found 30 acts of misconduct in a five-year period by Judge Gaul. The board determined he violated the constitutional rights of several criminal defendants, incarcerated people improperly, used racially charged terms to refer to Black people, and threatened and belittled people in his courtroom.

The Office of Disciplinary Counsel, which investigated the allegations, recommended a two-year suspension with one year stayed. But the office supports the board’s proposed discipline, stating that the term achieves the purposes of the judicial disciplinary process.

Judge Gaul, who was appointed to the court in 1991 and has been reelected six times, has objected to the board findings and suggested sanction. He acknowledges misconduct but argues for a stay of the one-year suspension. Because he objected to the board conclusions, the Supreme Court of Ohio will hear the case during oral arguments.

Judges Offers Much Less Prison Time if Defendant Doesn’t Go to Trial
Judge Gaul presided over eight cases between 2016 to 2021 that were reviewed. Seven were criminal cases, and the last involved a request for a civil stalking protection order.

In one of the criminal cases, Carleton Heard appeared for trial in Judge Gaul’s courtroom in August 2016 on attempted murder and other charges. Heard’s attorney asked for a continuance to postpone the trial to look into a claim that Heard had just made that he had been covering for the person who actually committed the crime. The case had been pending since December 2015.

The judge told Heard that if he didn’t agree to plead to something that day, the case was going to trial. If Heard pled no contest that day, the judge approximated that Heard’s sentence would be 14 years in prison. But if Heard went to trial and was convicted, the judge assured Heard that he would serve “multiples of 14 years.” Heard pleaded no contest to the charges. Neither the prosecutor nor Heard’s attorney participated in the discussion of the judge’s plea offer.

During sentencing, Judge Gaul referenced the victim of the shooting and said “his life didn’t matter to you, did it? And your black life didn’t matter to you, did it?” The judge commented about the “sorrow you’re going to put your baby’s mama through.” He also discussed children who are born in Cleveland out of wedlock.

Heard appealed, arguing his plea wasn’t voluntary because it was coerced. The Eighth District Court of Appeals vacated Heard’s plea and overturned the trial court judgment. The case returned to the trial court before a different judge. Heard was acquitted in a jury trial on all charges. He had served two years of Judge Gaul’s 14-year sentence before being released.

Board Says Judge Coerced Plea, Made Disrespectful Comments
The professional conduct board found that the judge had threatened Heard with a “trial tax” if Heard went to trial. The judge said he would impose the sentences for the offenses consecutively, up to 42 years. However, the board noted, defendants have the constitutional right to a trial and aren’t to be punished for exercising that right. By coercing a plea, Judge Gaul failed to uphold and apply the law, the board found. It added that Judge Gaul’s comments about the race of the victim and the defendant were irrelevant to the proceeding and were inappropriate. Judicial conduct rules require judges to be “patient, dignified, and courteous.”

The board concluded that in Heard’s case, Judge Gaul violated five judicial conduct rules and an attorney conduct rule prohibiting conduct prejudicial to the administration of justice. The judge failed to instill public confidence in the judiciary, acted improperly, and created the appearance of impropriety, the board noted.

Judge Grills Another Defendant, Unreasonably Hikes Bond, Defies Appeals Court
The board also found Judge Gaul questioned a defendant in a 2016 felonious assault case on topics that were improper. The judge asked the defendant about charges against him when he was a juvenile, any fights he had throughout his life at school or with family members, a drunk driving offense, and details about a crime in another state.

In other cases, the judge referred to Black people as “brother” and to a woman as a “mistress.” The board found Judge Gaul made demeaning, disrespectful, and unnecessary comments in several proceedings.

He also revoked a bond in a 2021 case without the prosecutor presenting evidence to support the decision and without recording the required findings in his decision, according to the board report. When the appeals court returned the case to him for those findings, he recited language from the relevant statute but didn’t provide any reasons to support the findings. The appeals court overturned the judge’s decision and ordered the release of the defendant, who had been detained for 184 days.

In another 2021 case, Judge Gaul arraigned a man charged with robbery and set bond. However, the defendant couldn’t be released on bond because he was being detained in two other cases ready for sentencing by a different judge. The defendant told the judge the bond was irrelevant. Judge Gaul responded by raising the bond from $25,000 to $100,000. The defendant said, “You ain’t hurt me. You just made yourself look stupid to how you are as a judge.” Judge Gaul found him in contempt of court and imposed an additional 30 days to any sentence he received in the other cases. He then retracted the increase in the bond. The contempt charge was later dismissed.

Board Weighs Additional Circumstances
When Judge Gaul responded to the disciplinary complaint, he denied committing any rule violations. But after the disciplinary hearing, he submitted a brief in which he admitted to 10 violations.

The board report noted eight aggravating factors, including an earlier six-month stayed suspension against Judge Gaul, the victims’ vulnerability, a refusal to acknowledge his misconduct, and a dishonest or selfish motive. The dishonest or selfish motive was attributed to the judge abusing his contempt power and unlawfully incarcerating people. Judge Gaul’s cooperation in the disciplinary process and extensive evidence of his good character and reputation were considered as mitigating circumstances.

The board maintained that judicial misconduct leading to someone’s incarceration is harmful and an abuse of public trust that supports and actual suspension from practicing law. The board also suggested that the Court order an immediate suspension of Judge Gaul from the bench without pay.

Judge Disagrees With Aggravating Factors, Many Misconduct Findings
Judge Gaul contests the board’s conclusions that he acted with a dishonest or selfish motive and that he refused to acknowledge the wrongful nature of his misconduct. He contends that his conduct gave him no gain or advantage. He also argues he is being penalized for not stipulating all the alleged rule violations. His brief states that the aggravating factor for refusal to acknowledge wrongful conduct is “a trial tax that requires judicial officers to admit all Rule violations charged or face a harsher sanction.”

He also disputes the 20 rule violations that he didn’t agree to. He asserts they weren’t proven by the evidence or were unwarranted given the specific facts and circumstances.

The judge argues for a stay of his suspension. He maintains that deficiencies in handling pleas or making other legal errors doesn’t mean discipline is appropriate.

Disciplinary Counsel Argues Judge Abused His Position
The disciplinary counsel maintains that Judge Gaul acted selfishly by using his power as a judge to give him an improper advantage over the fates of those before him and to allow him to speak to things he finds personally offensive. He also publicly criticized the Eighth District rulings in two of the cases to protect his personal reputation, the disciplinary counsel notes.

During the disciplinary proceedings and in his briefs, Judge Gaul has minimized his conduct, deflected blame, and pointed out the effect of the misconduct on his life rather than on the lives of those he harmed, the disciplinary counsel argues. The judge fails to appreciate the harm he caused, the disciplinary counsel states.

The board concluded that Judge Gaul’s actions weren’t simply routine legal errors. The disciplinary counsel agrees, emphasizing that the judge coerced unconstitutional pleas, vindictively took steps to attach an additional 30-day sentence in the contempt case, disregarded basic decorum and impartiality in his courtroom, and ignored directions from the Eighth District. An actual suspension is warranted, the disciplinary counsel concludes.

Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing the Office of Disciplinary Counsel: Joseph Caligiuri,

Representing Judge Daniel Gaul: Monica Sansalone,

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