Luke Barton v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2018-CA-00736-COA

LUKE BARTON APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 04/16/2018
TRIAL JUDGE: HON. CHRISTOPHER A. COLLINS
COURT FROM WHICH APPEALED: LEAKE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: IMHOTEP ALKEBU-LAN
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: BARBARA WAKELAND BYRD
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
DISPOSITION: AFFIRMED IN PART; REVERSED AND
REMANDED IN PART - 02/25/2020
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE CARLTON, P.J., GREENLEE AND TINDELL, JJ.

TINDELL, J., FOR THE COURT:

¶1. On November 4, 2015, a Leake County grand jury indicted Luke Barton for Count I,

the first-degree (deliberate-design) murder of his wife, Tonya Barton; Count II, the

aggravated assault of his father-in-law, Donald Johnson; and Count III, the aggravated

assault of his mother-in-law, Addie Johnson. Following a plea hearing, the Leake County

Circuit Court found that Barton had voluntarily pled guilty to all three counts. The circuit

court sentenced Barton to life imprisonment without eligibility for parole for Count I and to

concurrent fifteen-year sentences for Counts II and III, with all three sentences to be served

in the custody of the Mississippi Department of Corrections (MDOC).
¶2. Barton filed an unsuccessful motion for post-conviction collateral relief (PCR). On

appeal from the circuit court’s denial of his PCR motion, Barton argues that (1) he never

entered a voluntary guilty plea to any of his charges; (2) his attorneys rendered ineffective

assistance of counsel; and (3) the circuit court erroneously denied his recusal motion.

¶3. Because we find that a sufficient factual basis supported Barton’s guilty pleas in

Counts I and II, we affirm the circuit court’s denial of Barton’s requested PCR relief with

regard to those two charges. The record reveals, however, that Barton never voluntarily,

knowingly, and intelligently entered a plea to Count III and that no factual basis was

established for Count III. We must therefore reverse the circuit court’s denial of Barton’s

PCR motion as to Count III of his indictment and remand this case for further proceedings

as to that charge.

FACTS

¶4. On January 7, 2016, the circuit court found that Barton had voluntarily pled guilty to

all three counts charged in his indictment. The circuit court sentenced Barton to life

imprisonment without eligibility for parole for the murder charge and to concurrent fifteen-

year sentences for each of the aggravated-assault charges, with all three sentences to be

served in MDOC’s custody. The following week, on January 14, 2016, the circuit court re-

sentenced Barton as to Count II and ordered that Barton’s fifteen-year sentence for Count II

run consecutively to his life sentence for Count I. By order entered May 25, 2016, the circuit

court modified the January 14, 2016 order and reinstated Barton’s original concurrent fifteen-

year sentence for Count II. In addition, the circuit court ordered that Barton be placed on five

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years of supervised probation following his release from prison.

¶5. On December 5, 2017, Barton filed a PCR motion, which the circuit court heard on

February 1, 2018. On February 12, 2018, Barton filed an unsuccessful motion for the current

circuit judge’s recusal.1 On April 16, 2018, the circuit court entered an order denying

Barton’s PCR motion. Aggrieved, Barton appeals.

STANDARD OF REVIEW

¶6. “We review a circuit court’s findings of fact regarding denial or dismissal of a PCR

motion for abuse of discretion.” Montalto v. State, 272 So. 3d 132, 135 (¶12) (Miss. Ct. App.

2019). We review questions of law de novo. Id.

DISCUSSION

I. Guilty Pleas

¶7. Barton claims that his guilty plea to Count I for murder was not voluntary, knowing,

and intelligent because no factual basis existed for his plea. As for Counts II and III for

aggravated assault, Barton asserts that he never personally entered pleas to those charges.

Instead, he contends that one of his attorneys entered the guilty pleas to Counts II and III.

Barton therefore argues that the circuit court erred in denying his PCR motion on the basis

that he had entered voluntary guilty pleas to all three charges.

¶8. Rule 8.04(A)(3) of the Uniform Rules of Circuit and County Court Practice formerly

provided that “[b]efore the trial court may accept a plea of guilty, the court must determine

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Judge Marcus Gordon presided over Barton’s January 7, 2016 plea hearing. Judge
Gordon retired in March 2016, and Judge Christopher Collins succeeded him. Judge Collins
presided over the hearing on Barton’s PCR motion.

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that the plea is voluntarily and intelligently made and that there is a factual basis for the

plea.” URCCC 8.04(A)(3).2 “For a plea to be voluntary, knowing, and intelligent, the judge

must advise the defendant of his rights, the nature of the charge against him, and the

consequences of his plea, including applicable minimum and maximum sentences.” Worth

v. State, 223 So. 3d 844, 850 (¶19) (Miss. Ct. App. 2017). To establish a factual basis for a

plea, each essential element of the offense must be shown. Smith v. State, 86 So. 3d 276, 280

(¶10) (Miss. Ct. App. 2012). A defendant’s admission may provide the factual basis for a

plea, “but the admission must contain factual statements constituting a crime or be

accompanied by independent evidence of guilt.” Venezia v. State, 203 So. 3d 1, 2 (¶6) (Miss.

Ct. App. 2016) (quoting Hannah v. State, 943 So. 2d 20, 26-27 (¶16) (Miss. 2006)). On the

other hand, “[i]t is not error to accept a plea of guilt despite the defendant’s protestations of

innocence where there exists substantial evidence of the defendant’s guilt.” Smith, 86 So.

3d at 280 (¶10). Other avenues for establishing a factual basis include “a statement of the

prosecutor, the testimony of live witnesses, and prior proceedings.” Venezia, 203 So. 3d at

2 (¶6). While a sufficiently detailed indictment may also provide the factual basis for a plea,

“the indictment must be read into the record at the plea hearing.” Id. at 3 (¶7). “The

reviewing court may look beyond the plea transcript to determine whether there was a factual

basis for the charge, and review the record as a whole.” Id. at 2-3 (¶6) (internal quotation

marks omitted).

2
Effective July 1, 2017, the Mississippi Rules of Criminal Procedure replaced the
Uniform Rules of Circuit and County Court with regard to criminal practice. At the time of
Barton’s guilty pleas, however, the former rules remained in effect.

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a. Count I of Barton’s Indictment

¶9. At the beginning of Barton’s plea hearing, one of his attorneys stated that Barton

“desires to be rearraigned; and therefore we waive the reading of the indictment and enter

a plea of guilty to all three counts.” Despite the defense’s statement, the circuit court

required the State to read Count I of the indictment to Barton. The circuit court did not,

however, require Counts II and III to be read to Barton. Following the State’s reading of

Count I, the circuit judge asked Barton, “[T]o that indictment[,] how do you plead?” In

response, Barton answered, “Guilty.” With Barton’s plea petition in front of him, the circuit

judge proceeded to question Barton. In response to the circuit judge’s questions, Barton

denied that he was under the influence of alcohol or any drugs that might affect his thinking.

He also acknowledged that he understood he was pleading guilty to first-degree murder and

that life imprisonment was the penalty for that charge.

¶10. After the circuit judge and Barton discussed the terms of Barton’s plea-bargain

agreement as to Count I, the following exchange occurred:

THE COURT: I know nothing of the facts of this case. I have read
some account of it in the . . . [newspaper], but I want you
to tell me what happened. Who shot you?

BARTON: I really don’t --

THE COURT: You really don’t know?

BARTON: I know that I was wounded. I can’t really say that --
unless it’s an accident, you know, but --

....

THE COURT: What did he say?

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COUNSEL: He said that he couldn’t be sure how he got shot, and
there’s a chance that he could have accidently shot
himself. Is that right? Is that right?

BARTON: Yes.

....

THE COURT: Luke Barton, did you know Tonya Barton?

BARTON: Yes, sir.

THE COURT: You knew her during her lifetime; is that right?

BARTON: Yeah.

THE COURT: Was there a relationship with you and Tonya Barton?

BARTON: That was my wife.

THE COURT: That was your wife?

BARTON: Yes, sir.

THE COURT: How long had she been your wife?

BARTON: Eleven years.

THE COURT: Is that the victim of this murder case?

BARTON: Yes, sir.

THE COURT: Why is -- you have been indicted with deliberate design.
Why did you kill her?

BARTON: It was an accident.

THE COURT: It was an accident? Then I am not going to accept your
plea of guilty to murder.

COUNSEL: It was an accident, that you may have shot yourself --

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BARTON: Oh --

COUNSEL: -- but you were intending to shoot her.

BARTON: I wasn’t intending to shoot her.

COUNSEL: No. Could we talk to him just one second, Your Honor?

BARTON: I don’t really understand --

COUNSEL: He’s confused.

THE COURT: All right. All right.

BARTON: -- what you’re talking about.

THE COURT: Ross, he’s been indicted for deliberate design, Count I,
murder.

COUNSEL: Yes, sir. Yes, sir.

THE COURT: And that’s what -- if I accept his plea, that’s what he
must say, that he did that --

COUNSEL: Yes, sir.

THE COURT: -- according to this indictment.

COUNSEL: Yes, sir.

(Counsel confer with the Defendant.)

THE COURT: Again --

BARTON: I intended to shoot --

THE COURT: -- I will ask you the question. Did you shoot Tonya
Barton deliberately? Did you intend to kill her?

BARTON: Yes.

THE COURT: That’s equivalent to -- that’s in answer to a charge of

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murder, is what I’m asking you?

BARTON: Yes.

THE COURT: I have a lot of other questions, but I’m going to forgo
them. You have a constitutional right to have a trial by
jury. . . . The lawyers here have a duty to--they have a
responsibility to explain to you the minimum and
maximum sentence for the crime of murder. They have
the responsibility to explain to you what the penalty
would be by this court. That’s their responsibility, and
their responsibility is to talk to the prosecuting attorney
to see whether or not there’s any type of plea that can be
arranged. Now, they have done so, and they have talked
to the prosecutor[,] and they have talked to me about it.
I want to offer you an opportunity to have a trial by jury
if you would like to have one. That’s your constitutional
right.

BARTON: No, thank you.

THE COURT: No, thank you. I’ll accept the Defendant’s plea. I’m
satisfied that he understands what he’s doing; it’s a free
and voluntary plea; and that he has waived his
constitutional rights, including the constitutional right to
have a trial by jury on the charge for which he has now
entered a plea of guilty. In my opinion[,] he is guilty of
that crime. Are you satisfied with your lawyers, Luke
Barton?

BARTON: Yes, sir.

¶11. Upon review, we conclude the record contains sufficient evidence to demonstrate that

a factual basis existed for Barton’s guilty plea to Count I. Mississippi Code Annotated

section 97-3-19(1)(a) (Rev. 2014) defines first-degree murder as “[t]he killing of a human

being without the authority of law . . . [w]hen done with deliberate design to effect the death

of the person killed, or of any human being . . . .” The State read aloud Count I of Barton’s

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indictment, which set forth that Barton “did willfully, unlawfully, feloniously, without

authority of law and with deliberate design to effect the death of the person killed, or of any

human being, did kill and murder one Tonya Barton, a human being, contrary to and in

violation of Section 97-3-19(1)(a) . . . .” Following the State’s reading of Count I, Barton

pled guilty to the first-degree murder of his wife. When the circuit judge asked Barton to

relate the circumstances surrounding his wife’s shooting, Barton appeared to become

confused. Although Barton at one point stated that he did not intend to shoot his wife, he

later amended his statement and averred on the record that he deliberately shot his wife with

the intent to kill her. Based on such evidence, we find the record contains an adequate

factual basis to support Barton’s guilty plea to Count I for first-degree murder.3

b. Counts II and III of Barton’s Indictment

¶12. After accepting Barton’s guilty plea to Count I, the circuit court turned its attention

to Barton’s two aggravated-assault charges. With regard to Counts II and III of the

indictment, the following exchange occurred:

THE COURT: Now, there[ are] two other charges. I will not go into
those, but is there a plea of guilty to Count II?

COUNSEL: Yes, sir.

THE COURT: As charged?

3
Although we ultimately find the record contains a sufficient factual basis to support
Count I of Barton’s indictment, we note that further evidentiary support could have been
established had the circuit court conducted a thorough on-the-record review of the plea
petition with Barton and had the State recited on the record the facts and circumstances
under which Barton committed the murder. We remind circuit courts and attorneys that best
practice dictates these procedures be followed in every plea hearing.

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COUNSEL: Count II and III, aggravated assault.

THE COURT: As charged?

COUNSEL: Yes, sir. And I believe there’s a recommendation from
the district attorney’s office.

THE COURT: Mr. Kilgore, are you the prosecutor involved in this case?

PROSECUTOR: I am, Your Honor.

THE COURT: The prosecution has offered a plea of guilty to the crime
of murder. They have offered a guilty plea to Count II,
that of manslaughter.

COUNSEL: No. Aggravated assault.

....

THE COURT: Aggravated assault with a penalty of fifteen years to run
concurrent with the sentence of murder. They have
offered--they say that you have agreed to it, a sentence of
fifteen years to Count III to run concurrent with Count II
and Count I. Is that your agreement?

PROSECUTOR: Yes, Your Honor.

THE COURT: Is that your recommendation?

PROSECUTOR: Yes, Your Honor.

THE COURT: Gentlemen, did I state it correctly?

COUNSEL: You did, Your Honor.

THE COURT: Is that your plea-bargaining agreement?

COUNSEL: Yes, sir.

THE COURT: Murder -- a sentence of murder; in Count II a sentence
of, aggravated assault, fifteen years --

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COUNSEL: Yes, sir.

THE COURT: -- to run concurrent with Count I?

COUNSEL: Yes, sir.

THE COURT: And then in Count III, a plea of guilty to Count III of
aggravated assault, have a sentence of fifteen years to run
concurrent with the sentence pronounced in Count I?

COUNSEL: Yes, Your Honor.

THE COURT: Ma’am, did you get my statement? That will be the
sentence of the Court now. It’s the sentence of the
Court, Luke Barton, that you serve life imprisonment in
--

COUNSEL: Count I.

THE COURT: -- Count I with the Department of Corrections, and in
Count II you are sentenced to serve fifteen years to run
concurrent with Count I; and in . . . Count III you are
sentenced to serve fifteen years . . . [for] the crime of
aggravated assault to run concurrent with the sentence
pronounced in Count I. Now, that sentence will be the
sentence, gentlemen . . . .

(Emphasis added).

¶13. As the record reflects, Barton never actually entered a plea to either Count II or III

before the circuit court sentenced him for those charges. In addition, no factual basis was

ever provided for either Count II or III because the indictment was not read into the record,

Barton made no admissions regarding the aggravated-assault charges, and there was no

statement by the prosecutor or witness testimony to establish the circumstances surrounding

the charges. See Venezia, 203 So. 3d at 2-3 (¶¶6-7) (discussing the various ways that a

factual basis might be established). Moreover, the record reflects that the circuit court never

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informed Barton of the consequences of pleading guilty to Counts II and III.

¶14. At the subsequent hearing a week later on January 14, 2016, the circuit judge

explained that he wanted to “re-dictate” Barton’s sentence as to Count II, the aggravated

assault of Barton’s father-in-law, because the judge “was not informed of the conditions and

the facts of . . . [Barton’s] crime, and if it had been known, the [D]efendant would not have

received a concurrent sentence in Count II.” After changing Barton’s fifteen-year sentence

in Count II to run consecutively to rather than concurrently with the life sentence in Count

I, the circuit court gave Barton the opportunity to withdraw his guilty plea. After conferring

with his attorney, Barton stated that he did not wish to proceed to a jury trial.

¶15. In questioning Barton about the facts surrounding Count II, the circuit judge asked

why Barton had shot his father-in-law. The following exchange occurred:

THE COURT: Why did you shoot him?

....

BARTON: He went for -- he made a false move in his pocket[,] and
I shot him.

....

THE COURT: And so you decided he was about to assault you, so you
shot him. Is that what you are telling me?

BARTON: Yes, sir.

THE COURT: And you are pleading guilty to shooting your father-in-
law?

BARTON: Yes, sir.

¶16. One of Barton’s attorneys also questioned Barton on the record about Barton’s guilty

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plea to Count II. In so doing, Barton’s attorney stated, “I told you, didn’t I, that you didn’t

have to accept this; the Judge would give you one chance to withdraw your plea of guilty

where we’d have a trial?” Barton answered affirmatively. Barton’s attorney then asked

whether Barton wanted to “stick by . . . [his] plea of guilty” or whether Barton wanted to go

to trial, and Barton affirmed that he wanted to abide by his guilty plea.

¶17. The order entered the same day as the January 14, 2016 hearing stated that Barton was

rearraigned and that Barton “entered a plea of guilty to the three charges” in his indictment.

As a review of the January 14, 2016 hearing transcript reveals, however, no discussion ever

arose as to Barton’s aggravated-assault charge in Count III or how Barton wished to plead

in that count.

¶18. With regard to Count II of Barton’s indictment, we find that the first hearing on

January 7, 2016, failed to establish any factual basis for a plea to that charge of aggravated

assault. We further conclude, however, that a sufficient factual basis was established for

Barton’s guilty plea in Count II at the second hearing on January 14, 2016. Count II of the

indictment charged Barton with the aggravated assault of his father-in-law in violation of

Mississippi Code Annotated section 97-3-7(2)(a)(ii) (Rev. 2014). Section 97-3-7(2)(a)(ii)

provides that “[a] person is guilty of aggravated assault if he . . . attempts to cause or

purposely or knowingly causes bodily injury to another with a deadly weapon or other means

likely to produce death or serious bodily harm.” During the January 14, 2016 hearing, Barton

admitted that he intentionally shot his father-in-law, and when the circuit judge asked

whether Barton was pleading guilty to that crime, Barton answered affirmatively. Based

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upon Barton’s admission at the second hearing, as well as his prior admission that he

intentionally shot his wife, we find that the record contains a sufficient factual basis for his

guilty plea to Count II and that Barton voluntarily, knowingly, and intelligently made that

plea.

¶19. As to Count III, however, the record clearly reflects that Barton never voluntarily,

knowingly, and intelligently pled guilty to that charge and that no factual basis for Count III

was ever established. We therefore conclude that the circuit court erred by denying Barton’s

requested PCR relief with regard to Count III.

II. Ineffective Assistance

¶20. On appeal, Barton contends his attorneys provided ineffective assistance because at

the January 7, 2016 hearing, they coerced him to plead guilty to Count I and because they,

rather than he, entered guilty pleas to Counts II and III.

¶21. “[A] presumption exists that an attorney’s performance falls within the wide range of

reasonable professional assistance . . . .” Smith v. State, 275 So. 3d 100, 112 (¶39) (Miss. Ct.

App. 2019). To establish ineffective assistance, Barton must prove (1) his attorneys were

deficient, and (2) the deficiency deprived him of a fair trial. See Strickland v. Washington,

466 U.S. 668, 687 (1984). “A voluntary guilty plea waives claims of ineffective assistance

of counsel, except insofar as the alleged ineffectiveness relates to the voluntariness of the

giving of the guilty plea.” Worth, 223 So. 3d at 849 (¶17). Thus, a petitioner who pled guilty

and subsequently seeks post-conviction relief “must prove that his attorney’s ineffective

performance proximately caused the plea—i.e., that but for counsel’s errors, the petitioner

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would not have entered the plea. This requires proof beyond the petitioner’s own conclusory

assertions.” Id. at 849-50 (¶17) (citation omitted).

¶22. As previously discussed, we find the record contains sufficient evidence to show that

Barton entered voluntary guilty pleas to Counts I and II of his indictment. In pleading guilty

to Count I at the January 7, 2016 hearing, Barton conferred with his attorneys off the record.

On appeal, Barton seems to assert that during this off-the-record conference, his attorneys

coerced him to plead guilty. Beyond his own vague allegation, however, Barton offers no

specific facts regarding his claim that his attorneys coerced or induced him to plead guilty

to Count I, and the record wholly fails to support such an assertion. In addition, the circuit

judge asked Barton during the plea colloquy whether he was satisfied with his attorneys’

services, and Barton responded, “Yes, sir.” Our caselaw has long held “that ‘solemn

declarations in open court carry a strong presumption of verity.’” Wallace v. State, 264 So.

3d 1, 4 (¶12) (Miss. Ct. App. 2018) (quoting Baker v. State, 358 So. 2d 401, 403 (Miss.

1978)). Because Barton cannot overcome the strong presumption that his attorneys’

performance was sufficient, we find no merit to his claim that his attorneys provided

ineffective assistance by coercing him to plead guilty to murder.

¶23. As to Barton’s claim that his attorneys were ineffective because they entered guilty

pleas to Counts II and III on his behalf, we again acknowledge the existing presumption “that

an attorney’s performance falls within the wide range of reasonable professional

assistance . . . .” Smith, 275 So. 3d at 112 (¶39). While the record reflects that Barton’s

attorneys answered some of the circuit judge’s questions as they attempted to assist their

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client with the plea proceedings, we cannot say that such conduct fell outside the wide realm

of reasonable professional assistance. Nor can we find that Barton has sufficiently proven

that such assistance was ineffective or deficient. In addition, as discussed, we find that

Barton voluntarily, knowingly, and intelligently entered a guilty plea to Count II at the

January 14, 2016 hearing. We therefore conclude that his ineffective-assistance claim as to

Counts II and III also lack merit.

III. Recusal

¶24. In his final assignment of error, Barton asserts that Judge Christopher Collins, who

presided over his PCR hearing, abused his discretion by denying Barton’s motion to recuse.

Judge Marcus Gordon presided over Barton’s January 7, 2016 plea hearing and the January

14, 2016 resentencing hearing. In March 2016, Judge Gordon retired. Judge Collins

succeeded Judge Gordon and presided over Barton’s PCR hearing. After the PCR hearing,

Barton moved for Judge Collins’s recusal. Barton stated that he had sustained a gunshot

wound during the incident that led to his indictment charges, and as a result of the injury, he

had difficulty controlling his body movements. In his recusal motion, Barton claimed that

at his January 7, 2016 plea hearing, Judge Collins, who was then an attorney, was present in

the courtroom. Barton further claimed that he saw then-attorney Collins laugh at, mock, and

imitate him as he attempted to answer Judge Gordon’s questions. Barton asserted that Judge

Collins’s alleged conduct called into question his impartiality as to Barton’s requested PCR

relief. After reviewing Barton’s recusal motion, Judge Collins denied the motion as meritless

and frivolous.

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¶25. We review the circuit court’s denial of Barton’s recusal motion for manifest error.

Kinney v. S. Miss. Planning & Dev. Dist. Inc., 202 So. 3d 187, 194 (¶20) (Miss. 2016).

Mississippi Code of Judicial Conduct Canon 3(E)(1) provides that “[j]udges should

disqualify themselves in proceedings in which their impartiality might be questioned by a

reasonable person knowing all the circumstances or for other grounds provided in the Code

of Judicial Conduct or otherwise as provided by law . . . .” As the Mississippi Supreme

Court explained in Kinney:

This Court presumes that a judge, sworn to administer impartial justice,
is qualified and unbiased. For a party to overcome the presumption, the party
must produce evidence of a reasonable doubt about the validity of the
presumption. Reasonable doubt may be found when there is a question of
whether a reasonable person, knowing all of the circumstances, would harbor
doubts about the judge’s impartiality. Said another way, the presumption is
overcome only by showing beyond a reasonable doubt that the judge was
biased or unqualified.

Kinney, 202 So. 3d at 194 (¶20) (emphasis, citations, and internal quotation marks omitted).

¶26. Other than his own unsupported assertions, Barton provides no evidence to overcome

the presumption that the circuit judge was unbiased or acted impartially. Because Barton has

failed to show beyond a reasonable doubt that the circuit judge should have recused himself,

we find this issue lacks merit.

CONCLUSION

¶27. Although we find the record contains a sufficient factual basis for Barton’s guilty

pleas to Counts I and II, the record also reveals that Barton never entered a plea to Count III

and that no factual basis was ever established for Count III. We therefore affirm the circuit

court’s denial of Barton’s PCR motion as to Counts I and II, but we must reverse the circuit

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court’s judgment as to Count III and remand this case for further proceedings as to that

charge.

¶28. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

BARNES, C.J., CARLTON AND J. WILSON, P.JJ., GREENLEE,
WESTBROOKS, McDONALD, LAWRENCE AND C. WILSON, JJ., CONCUR.
McCARTY, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE
WRITTEN OPINION.

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