J-S24029-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

RAHMIL FIELDS,

                        Appellant                   No. 2887 EDA 2014

         Appeal from the PCRA Order entered September 23, 2014,
           in the Court of Common Pleas of Philadelphia County,
           Criminal Division, at No(s): CP-51-CR-0003495-2007

BEFORE: GANTMAN, P.J., ALLEN, and MUSMANNO, JJ.

MEMORANDUM BY ALLEN, J.:                             FILED APRIL 13, 2015

      Rahmil Fields (“Appellant”) appeals from the order denying his petition

filed pursuant to the Post Conviction Relief Act (“PCRA”). 42 Pa. C.S.A. §§

9541-9546. We affirm.

      The PCRA court summarized the pertinent facts and procedural history

as follows:

             On October 26, 2006, [Appellant, who was then sixteen
         years old,] shot and killed Mr. Antonio Johnson on Cantrell
         Street in Philadelphia.       [Appellant] was subsequently
         charged with murder, generally, and other offenses, and
         went to trial thereon in October of 2008. On October 14,
         2008, a jury convicted [Appellant] of first-degree murder
         following a trial before this Court. After the jury rendered
         its decision and the verdict was recorded, this Court
         imposed the mandatory sentence of life imprisonment on
         [Appellant].    [Appellant] filed a direct appeal to the
         Superior Court; however, it was dismissed on February 4,
         2010, because counsel failed to file a brief. (3194 EDA
         2008).
J-S24029-15

            On September 13, 2011, [Appellant] sent a letter to the
        Pennsylvania Attorney Discipline Board, which informed
        [Appellant] by letter dated September 29, 2011, that his
        appeal had been dismissed.        [Appellant], who was a
        juvenile at the time the crime herein occurred, took no
        action in his case until August 2, 2012, when he mailed a
        pro se pleading requesting the appointment of counsel for
        purposes of seeking relief pursuant to the decision
        rendered by the United States Supreme Court in Miller v.
        Alabama, [132 S.Ct. 2455 (2012)], wherein the Supreme
        Court held that “mandatory life without parole for those
        under the age of 18 at the time of their crimes violates the
        Eighth Amendment’s prohibition against ‘cruel and unusual
        punishments.’” On October 10, 2012, [Appellant] filed a
        pro se [PCRA petition,] and counsel was appointed to
        represent him.     Counsel thereafter filed an amended
        petition and an amended petition seeking habeas corpus
        relief.

           After conducting an extensive and exhaustive review of
        these filings, the record and applicable case law, this Court
        found that [Appellant’s PCRA petition] was untimely filed.
        Consequently, on September 23, 2014, after having served
        [Appellant] notice of this Court’s intent to dismiss his
        petition without a hearing pursuant to Pa.R.Crim.P. 907,
        this Court issued an Order denying [Appellant] PCRA relief.

PCRA Court Opinion, 11/4/14, at 1-2.       This timely appeal followed.   Both

Appellant and the PCRA court have complied with Pa.R.A.P. 1925.

     Appellant raises the following issues:

           I. Is [A]ppellant, a juvenile at the time of the shooting
        that resulted in his conviction, entitled to be resentenced
        since his life sentence is illegal under the United States
        Constitution and the Pennsylvania Constitution and in
        accordance with Miller v. Alabama, [supra]?

           II. Is [Appellant] entitled to post conviction relief in the
        form of the grant of leave to file a notice of appeal nunc
        pro tunc to the Superior Court or a remand for an
        evidentiary hearing since trial counsel rendered ineffective
        assistance of counsel when he failed to protect

                                     -2-
J-S24029-15

          [A]ppellant’s appellate rights by complying with the
          Superior Court’s briefing order resulting in the dismissal of
          the appeal?

Appellant’s Brief at 4.

       After careful review, we conclude that the Honorable Jeffrey P.

Minehart has prepared a thorough and well-reasoned opinion that correctly

refers to the timeliness restrictions of the PCRA, and explains why

Appellant’s argument of an exception based on Miller v. Alabama, supra,

is   unavailing.    See   PCRA    Court   Opinion,   11/4/14,   at   3-5   (citing

Commonwealth         v.   Seskey,    86     A.3d   237   (Pa.   Super.     2014);

Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013). In addition, Judge

Minehart correctly held that Appellant’s request for habeas corpus relief is

subsumed within the PCRA.           Id. at 6-7 (citing Commonwealth v.

Peterkin, 722 A.2d 638 (Pa. Super. 1998); Seskey, supra).                Thus, we

adopt Judge Minehart’s November 4, 2014 opinion as our own in determining

that Appellant’s PCRA petition is untimely.

       With regard to Appellant’s second issue, our review of the certified

record supports Judge Minehart’s conclusion that this issue is also time

barred. See PCRA Court Opinion, 11/4/14, at 7-8.

       In sum, we affirm the PCRA court’s order denying post-conviction relief

on the basis of the PCRA Court’s November 4, 2014 opinion.

       Order affirmed.

                                      -3-
J-S24029-15

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/13/2015

                          -4-
                                                                               RLE,
                                                                    Circulated 04/01/2015 11:51 AM
                                                                                10i-17.2014 035412 PM
                                                                                POS1 Teki 1. rn

                                                                                By: P. GRA

                       IN THE
    COURT OF COMMON PLEAS OF PMLADELPHIA COUNTY
               CRIMINAL TRIAL DIVISION

COMMONWEALTH OF PENNSYLVANIA :                       CP-51-0003495-2007

                v.

RAHMIL FIELDS                                        HOMICIDE

                    CONCISE STATEMENT OF
               ERRORS COMPLAINED OF ON APPEAL

             The defendant, RAHMIL FIELDS, by and through counsel,

JANIS SMARRO, ESQUIRE, complies with the Order pursuant to

Pa.R.A.P, 1925(b), and files this Concise Statement of Errors Complained of

on Appeal stating that he intends to complain of the following on appeal:

             1. The defendant is entitled to post-conviction relief in the form

of resentencina or an evidentiary hearing since the life sentence imposed on

the defendant, a juvenile at the time of the incident, is illegal pursuant to the

recent -United Supreme Court cases of Miller v. Alabama and Jackson v.

Hobbs as the life sentence constitutes cruel and unusual punishment in

violation of the Eight Amendment to the United States Constitution and

Article I, Section 13 cif the Pennsylvania Constitution. The arguments made

in the defendant's amended post-conviction petition are adopted herein.
                                                                   Circulated 04/01/2015 11:51 AM

             2. The defendant is entitled to post-conviction relief in the form

of reinstatement of appellate rights mine pm tune or an evidentiary hearing

since trial counsel rendered ineffective assistance of counsel when he failed

to protect the defendant's appellate rights by complying with the Superior

Court's briefing order resulting in the dismissal of the appeal.            The
amuments made in the defendant's amended post-conviction petition are

adopted herein.

                        JANIS SMARRO, ESQUIRE
                        ATTORNEY FOR THE DEFENDANT
                        ATTORNEY NO.36429
                        SUITE 1200-1515 MARKET STREET
                        PHILADELPHIA, PA. 19102
                        2I 5.854.6406
                                                                              Circulated 04/01/2015 11:51 AM

                 IN THE COURT OF COMMON PLEAS OF
                       PHILADELPHIA COUNTY

                              OFFENSE TRACKING NUMBER

COMMONWEALTH OF PENNSYLVANIA:                        CRIMINAL TRIAL DIVISION

                   v.                                CP-51-CR-000305-2007

RAHMIL FIELDS                                        HOMICIDE

                                 PROOF OF SERVICE

               I certify that l am this day serving a true and correct copy of the attached
by First Class Mail or hand delivery, to the following:

                                      Trial Judge:
                                Hon. Jeffrey P. Minehart
                              1206 Crirninal Justice Center
                                   1301 Filbert Street
                                Philadelphia,PA 19107

                            Attorney for the Commonwealth
                                  Hugh Burns, Esquire
                                   Chief-Appeals Unit
                               District Attorney-s Office
                               Three South Penn Square
                                Philadelphia., PA 19107

                                    JANIS SMARRO,ESQUIRE
                                    ATTORNEY FOR DEFENDANT
                                    ATTORNEY NO.36429
                                    SUITE 1200-1515 MARKET STREET
                                    PHILA.,PA 19102
                                    215.854.6406

DATE:
                                                                               Circulated 04/01/2015 11:51 AM

                           IN THE COURT OF COMMON PLEAS
                      FIRST JUDICIAL DISTIUCT OF PENNSYLVANIA
                          TRIAL DIVISION-CRIMINAL SECTION
                                                                                FILED
 COMMONWEALTH OF PENNSYLVANIA
                                                                                KOV 0 4 2014

                                                                           rtiti
                                                                        kahfl
                                                                                Pest Trial Unit
                                   CP-51-01-0003495 2007 Comm v Fiekiš.
                       v.                            Opinion

 RAHMIL FIELDS                                  1,1\1 .1\319.4\1\11111             CP-51-CR-0003495-2007

                                               OPINION

PROCEDURAL RISTORY

        On October 26. 2006, defendant shot and killed Mr. Antonio Johnson on Cantrell Street

in Philadelphia. Defendant was subsequently charged with murder, generally, and other
                                                                                offenses
and went to trial thereon in October of 2008. On October 14, 2008, a jury convicted the
                                                                                above-
named defendant of first-degree murder following a trial betbre this Court.
                                                                            After the jury
rendered its decision and the verdict was recorded. this Court imposed the mandatory
                                                                                sentence of
life imprisonment on defendant. Defendant filed a direct appeal to the Superior Court;
                                                                                however
it was dismissed on February 4,2010, because counsel failed to file a brief.(3194 EDA
                                                                                2008).
       On September 13, 2011, defendant sent a letter to the Pennsylvania Attorney
                                                                                Disciplin              ary
Board, which informed defendant by letter dated September 29, 2011, that his
                                                                             appeal had been
dismissed. Defendant, a juvenile at the time the crime herein occurred, took no action
                                                                                in his case
until August 2, 2012, when he mailed a pro se pleading requesting the appointm
                                                                               ent of counsel
for purposes of seeking relief pursuant to the decision rendered by the United States
                                                                                Supreme
Court in Miner v. Alabama, _US , 132 S. Ct. 2455, 183 L, Ed. 2d 407 (2012),
                                                                            wherein the

                                                     1
                                                                               Circulated 04/01/2015 11:51 AM

 Supreme Court held that -mandatory life without parole for those under the age of 18 at the time

 of their crimes violates the Eighth Amendment's prohibition against 'cruel and unusual

 punishments.'" On October 10, 2012, defendant filed a pro se petition pursuant to the Post-

 Conviction Relief Act, 42 Pa.C.S. § 9541 et seq, and counsel was appointed to represent him.

Counsel thereafter filed an amended petition and then an amended petition seeking habeas

corpus relief.

        After conducting an extensive and exhaustive review ofthese filings, the record and

applicable case law, this Court found that Petitioner's petition for post conviction collateral relief

was untimely filed. Consequently, on September 23,2014, after having served defendant notice

ofthis Court's intent to dismiss his petition without a hearing pursuant to Pa.R.Crim.P. 907, this

Court issued an Order denying defendant PCRA relief. Defendant thereafter filed a timely notice

of appeal and a requested Pa.R.A.P. 1925(b) statement of issues to be raised on appeal.

DISCUSSION

       In his 1925(b)statement defendant first argues that he was entitled to post-conviction

relief because his sentence of life imprisonment without parole is illegal and unconstitutional as

it constitutes cruel and unusual punishment pursuant to thc holding of Miller, supra. This claim

entitled defendant to no relief because he did not file his petition in accordance with the time

strictures of the PCRA.

       In reviewing the propriety of the PCRA eourt's dismissal of a petition without a hearing,

the reviewing court is limited to determining whether the court's findings are supported by the

record and whether the order in question is free of legal error. Cornmonwealth v. Holmes, 905

A.2d 707, 509 (Pa. Super. Ct. 2006) citing Commonwealth v. Halley, 870 A.2d 795, 799 (Pa.

2005). The PCRA court's findings will not be disturbed unless there is no support for the
                                                                               Circulated 04/01/2015 11:51 AM

findings in the certified record. Cornmonwealth v. Carr, 768 A.2d 1164, 1166(Pa. Super. 2001).

A PCRA court may decline to hold a hearing on the petition if the petitioner's claim is patently

frivolous and is without a trace of support either in the record or from other evidence.

Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa. Super. 2001). The reviewing court on

appeal must examine each of the issues raised in the PCRA petition in light of the record in order

to determine whether the PCRA court erred in concluding that there were no genuine issues of

material fact and denying relief without an evidentiary hearing. Id. See also Commonwealth v.

Hardcastle, 701 A.2d 541, 542(Pa. 1997).

        Under the P.C.R.A., a defendant has one year frorn the date a judgment becomes final to

file fOr collateral relief. 42 Pa. C.8. §9545. A petitioner may file a petition after that date but, in

order to avoid having it dismissed on timeliness grounds, he must plead and prove that one of
                                                                                the
three exceptions to the filing requirements apply. 42 Pa. C.S. §9545(b) provides:

                      (1) Any petition under this subchapter, including
                      a second or subsequent petition, shall be filed
                      within one year of the date the judgment becomes
                      final, unless the petition alleges and the petitioner
                      proves that:

                        (i) the failure to raise the claim preriously was
                        the result ofinterference by government officials
                        with the presentation of the claim in violation
                        ofthe Constitution or laws ofthis Commonwealth'
                        or the Constitution or laws ofthe United States:

                       (ii) the facts upon which the clairn is predicated
                       were unknown to the petitioner and could not
                       have been ascertained by the exercise of due
                       diligence; or

                       (iii) the right asserted is a constitutional right
                       that was recognized by the Supreme Court ofthe
                       United States or the Supreme Court of Pennsylvania
                       after the time period provided in this section and
                       has been held by that court to apply retroactively.

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                             (2) Any petition invoking an exception provided in
                             paragraph (1)shall be filed within 60 days of the
                             date the claim could have been presented.

                             (3) For purposes of his subchapter, ajudgment becomes
                             final at the conclusion ofthe direct review. including
                             discretionary review in the Supreme Court of the United
                             States and the Supreme Court of Pennsylvania, or at the
                             expiration of time for seeking the review.

                             (4) For purposes ofthis subchapter,"government
                             officials" shall not include defense counsel, whether
                             appointed or retained.
          The P.C.R.A.'s time limit is jurisdictional. Commonwealth v. Yarris, 731 A.2d 581

 (1999). Commonwealth v. Peterkin, 722 A.2d 638,641 (1998). Thus, an untimely petition rnay

 not be addressed simply because it is couched in terms of ineffectiveness. Peterkin, 722 A.2d
                                                                                at
 643. Moreover, to successfully invoke one of these exceptions a petitioner must plead and then

 prove that an exception to the time for filing the petition set forth at 42 Pa.C.S. § 9545(b)(1
                                                                                )(i)-
(iii) applies. 42 Pa.C.S. § 9545(b)(2); Commonwealth v. Bennett, 930 A.2d 1264. 1272 n.11
                                                                                (Pa.
2007); Commonwealth v. Crews,863 A.2d 498, 501 (Pa. 2004),

          Defendant's judgment of sentence became final on March 8, 2010.1 IA] judgn-ient

becomes final at the conclusion of direct review, including discretionary review in the
                                                                                Supreme
Court of the United States and the Supreme Court of Pennsylvania, or at the expiration
                                                                                of time
for seeking the review." 42 Pa.C.S. § 9545(b)(3); Pa.R.Crim.P. 720(A)(2)(a)(providin
                                                                                g                            that if
defendant files timely post-sentence motion, notice of appeal shall be filed within thirty
                                                                                days of
order deciding motion); Pa.R.A.P 903 ("Except as otherwise prescribed by this rule,
                                                                                the notice

'Although a conviction usually becomes final thirty days after the Superior Court affirms a
                                                                                judgment of sentence,
the thirtieth day fell on March 6, 2010, a Saturday and by rule, defendant had until the next date the
                                                                                Court was open
for business to file a petition of allowance of appeal. See 1Pa.C.S.§ 1908. This Court considered
                                                                                the mailing of the
request for counsel to be a request for post-conviction collateral relief as it was filed after defendant's
                                                                                conviction
becarne final. It is noted that it was deemed to be filed when defendant mailed it pursuant to the
                                                                                prison "mailbox"
rule.

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                                                                               Circulated 04/01/2015 11:51 AM

 of appeal ... shall he filed within 30 days after the entry of the order from which the appeal is

 taken.").

         Here defendant mailed his petition for appointment of counsel on August 2, 2012, well

 past March 8, 2010, and thus, his petition clearly was untimely filed under the PCRA, even

 though he filed the aforementioned petition within sixty days of the date on which Miller was

 issued. While defendant did file his petition for the appointment of counsel within sixty days of

 the date Miller was handed down, the only potentially applicable exception to the one-year filing

 deadline is the one set forth in section 9545(b)(1)(iii). Although defendant did not waive
                                                                                his
 Miller claim because he raised it within sixty days of the date Miller was handed
                                                                                down,
 defendant still had the burden of establishing that this Court had jurisdiction to address
                                                                                the claim.
 See Commonwealth v, Seskey, 86 A.3d 237, 241 (Pa. Super. 2014). He failed in this endeavo
                                                                                r
 because Miller was held in Commonwealth v. Cunningham, 81 A.3d 1 (2013), cert.
                                                                                denied, 573
 U.S. -- (U.S. June 9, 2014)(No. 13-1 038), not to apply retroactively. As the
                                                                               Superior Court
explained in Seskey:

                Subsection (iii) of Section 9545[(b)(1)] has two requirements.
                First, h provides that the right asserted is a constitutional right that
                was recognized by the Supreme Court of the United States or [the
               Supreme Court of Pennsylvania] after the time provided in this
               section. Second, it provides that the right "has been helr by "that
               courr to apply retroactively. Thus, a petitioner must prove that
               there is a "new- constitutional right and that the right "has been
               held" by that court to apply retroactively. The language "has been
               held" is in the past tense. These words mean that the action has
               already occurred, i.e., "that courr has already held the new
               constitutional right to be retroactive to cases on collateral review.
               By employing the past tense in writing this provision, the
               legislature clearly intended that the right was already recognized at
               the time the petition was filed.

Seskey, 86 A.3d at 242-43 (quoting Commonwealth v. Copenhefer, 941 A.2d 646,
                                                                             649-50)(Pa.
2007)(citation omitted)).

                                                 5
                                                                               Circulated 04/01/2015 11:51 AM

         Thus, defendant's claim that this Court erred by dismissing his Miller claim entitles him

 to no relief becau.se it is clear that defendant failed to establish that Miller set forth a new

 constitutional right that applied retroactively at the time he filed his pro se petition, and

 therefore. his request fbr PCRA relief was untimely filed. This Court had no authority to ignore

 the Cunningham ruling.

        This Court notes that even though defendant challenged the legality and constitutionality

 of his sentence, the one-year deadline of the PCRA still applied. See Commonwealth v.

 Slotcavage, 939 A.2d 901, 903 (Pa. Super. 2007)(citing Commonwealth v. Fahy, 737 A.2d
                                                                                214,
 223 (Pa. 1999)("Although a legality of sentence is always subject to review within the PCRA,

 claims must still first satisfy the PCRA's time limits or one of the exceptions thereto."
                                                                                )).
 Therefore, to be entitled to relief even on his sentencing claim it was incumbent on
                                                                                defendant to
establish that one of the exceptions to the one-year filing requirement applied to excuse
                                                                                the late
filing of his petition. As noted above, defendant failed to meet his burden.

        Finally, although defendant sought relief from his life sentence pursuant to
                                                                                a writ of
habeas corpus, in Peterkin, 722 A.2d at 640, the Pennsylvania Suprerne Court
                                                                             explained that
"the PCR A subsumes the remedy of habeas corpus with respect to remedies offered
                                                                                under the
PCRA and that any petition seeking relief under the PCRA rnust be filed within one
                                                                                year offinal
judgrnent." The writ of habeas corpus "continues to exist only in cases in
                                                                           which there is no
rernedy under the PCRA." Id.

       In the instant rnatter, defendant argued in his habeas petition that his sentence
                                                                                is illegal
because it is unconstitutional under Miller, supra. Such claims are cognizable
                                                                               under the PCRA.
42 Pa,C.S.A. § 9543(a)(2)(ii)(vii). As such, the PCRA subsumed defendant's
                                                                           issue and this
Court lacked jurisdiction to address the issues raised in defendant's habeas
                                                                             petition because

                                               6
                                                                               Circulated 04/01/2015 11:51 AM

 defendant failed to prove that one of the PCRA time exceptions excused the late filing of his

 petition. In Seskey,supra, the Superior Court stated:

                        Throughout his brief, Appellant attempts to circumvent the
                effect that Cunningham has upon our jurisdiction by arguing, inter
                alia: that he is entitled to relief under Article 1, § 13 of the
               Pennsylvania Constitution ("Excessive bail shall not be required,
                nor excessive fines imposed, nor cruel punishments inflicted."),
               independently of the Eighth Amendment. Brief for Appellant 10-
                13; that Miller should be applied retroactively based upon
               Pennsylvania's broader retroactivity principles, Brief for Appellant
               at 19-26; and that the inequitable result that Miller created violates
               Pennsylvania's due process and equal protection principles. Brief
               for Appellant at 27-30. While these arguments someday may
               require consideration by our courts, today cannot be that day.
               Before a court may address Appellant's arguments, or similar
               contentions, that court must have jurisdiction. We cannot
               manufacture jurisdiction based upon the substantive claims raised
               by the parties. Presently, we are confined by the express terms of
               subsection 9545(b)(I )(iii) and our Supreme Court's decision in
               Cunningham. Combined, those two elements require us to
               conclude that we lack jurisdiction. No substantive claim can
               overcome this conclusion.

Seskey, 86 A.3d at 243.

       Therefore. under the holding of Seskey, this Court's determination that defendant was not

entitled to habeas relief, respectfully, should be affirmed.

       Accordingly, for the reasons stated, it is suggested that this Court's ruling finding
                                                                                no
merit to defendant's claim that he is entitled to relief because his sentence is illegal
                                                                                should be
affirmed.

       Defendant's next and final issue was also properly dismissed on timeliness grounds.
                                                                                As
an initial matter. in order to invoke an exception to the Act's timeliness provision, there
                                                                                is a
requirement that a petitioner file his claim "within 60 days of the date the claim could
                                                                                have been
presented." 42 Pa.C.S.A. § 9545(b)(2). The 60-day rule requires a petitioner to plead and
                                                                                prove

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    that the information on which he relies could not have been obtained earlier, despite the exercise

    of due diligence. Commonwealth v. Marshall, 947 A.2d 714, 720(Pa. 2008),

            In the instant case. defendant was made aware that his appeal had been dismissed because

    appellate counsel had not filed a brief on September 29, 2011, when he received a letter

    informing him of that fact. Defendant did not file his petition for appointrnent of counsel until

    August 2,2012, well after sixty day period set forth in section 9545 had expired.

           Defendant attempts to overcome the late filing by claiming that the letter he received on

    September 29, 2011, failed to inform him of the steps necessary to have his appellate rights

    reinstated and that he did not have the transcript from his trial or discovery materials. Neither

    ground excuses defendant's late filing because he waited over ten months after receiving
                                                                                the
    letter before he filed his petition for the appointment of counsel. Moreover, defendant
                                                                                did not
    need his trial transcript or discovery material to seek PCRA relief. Finally, defendant has failed

 to explain why he could not have learned prior to his receipt ofthe letter that his appeal had been

dismissed. For all of these reason, it is clear that defendant's second claim was time
                                                                                barred and
it is respectfully sugaested that this Court's dismissal of it be affirmed?

2 Defendant cited to Bennett, supra, as supporting his claim. In Bennett, the Supreme Court
                                                                                ruled that if a defendant
proves that he was abandoned by counsel and raises the claim within sixty days of the date
                                                                                he learned ofthe
abandonment, he meets the newly discovered time exception set forth in section 95459b). Here
                                                                                defendant, failed to
meet his burden because he did not seek relief within sixty days of the date he learned that his
                                                                                appeal had been
dismissed. Consequently, Bennett did not apply to excuse defendant's untimely request for
                                                                                relief.

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CONCLUSION

        In sum,defendant failed to file his claims within the PCRA's necessary time limitations,

or establish that any ofthe exceptions applied to his case. Accordingly. for all of thc foregoing

reasons, defendant's petition was properly dismissed as untimely and, respectfully. it is

suggested that the ruling be affirmed.

                                                            BY THE COURT,

DATE:

                                              9


                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT

                             No. 96-7569

SYLPHIDE A. SPENCER,

                                             Plaintiff - Appellant,

          versus

B. DOLAN, Lieutenant; WENDY HOBBS, Warden,
Virginia Correctional Center for Women,

                                            Defendants - Appellees.

Appeal from the United States District Court for the Eastern Dis-
trict of Virginia, at Alexandria. Albert V. Bryan, Jr., Senior
District Judge. (CA-96-680)

Submitted:   July 22, 1997                 Decided:   August 5, 1997

Before NIEMEYER, HAMILTON, and WILLIAMS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Sylphide A. Spencer, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     Appellant appeals the district court's order denying relief on

her claim under 42 U.S.C.A. § 1983 (1994). We have reviewed the

record and the district court's opinion and find no reversible

error. Accordingly, we affirm on the reasoning of the district

court. Spencer v. Hobbs, No. CA-96-680 (E.D. Va. Sept. 23, 1996).
We dispense with oral argument because the facts and legal conten-

tions are adequately presented in the materials before the court

and argument would not aid the decisional process.

                                                          AFFIRMED

                                2


319 F.2d 528
William J. ROTHAUS, Appellant,v.UNITED STATES of America, Appellee.
No. 20059.
United States Court of Appeals Fifth Circuit.
July 3, 1963.

Carl Estes, II, Houston, Tex., J. C. Grossenbacher, Jr., San Antonio, Tex., for appellant.
Harry Lee Hudspeth, Asst. U.S. Atty., San Antonio, Tex., for appellee.
Before HUTCHESON and GEWIN, Circuit Judges, and CONNALLY, District judge.
PER CURIAM.

1
This appeal by the defendant from a conviction for violation of the narcotics laws is, we think, quite without merit.  Only two errors are assigned.  One of these is that the defendant when tried and convicted was placed in double jeopardy because this was his second trial for the same offense after the first jury to try his case was discharged for inability to agree.

2
It is established law that one pleading jeopardy has the burden of sustaining his plea.  Reid v. United States, 177 F.2d 743 (5th Cir.) and it has long been settled law in the federal courts that the trial court may in its discretion discharge a jury before a verdict is returned when there is a manifest necessity for such action or when the ends of public justice would be otherwise defeated and such discharge does not bar a future trial.  Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974; Keerl v. Montana, 213 U.S. 135, 29 S.Ct. 469, 53 L.Ed. 734.  Whether or not the circumstances require the discharge of a jury in a particular case is a matter within the sound discretion of the trial court.  United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165.

3
Upon the record in this case, it is quite plain that the court did not abuse its discretion in discharging the jury and that the defendant has not been subjected to double jeopardy.

4
The other assignment of error is no better taken.  This is that Government's exhibit No. 5, which contained the marihuana which the government claimed the defendant had been guilty of purchasing, was not properly identified.

5
It is certainly a correct principle of law, as claimed by appellant, that when an object is taken from the defendant for the purpose of testing its nature or content, it is essential to the admissibility in evidence of the results of the testing that the identification of the object or substance tested with the object or substance taken from defendant be established.  The evidence in the case abundantly supports the submission of the issue and the verdict thereon.  Gallego v. United States, 9 Cir., 276 F.2d 914.

No error appearing, the judgment is

6
Affirmed.


651 S.E.2d 350 (2007)
SISTRUNK
v.
The STATE.
No. A07A1179.
Court of Appeals of Georgia.
July 31, 2007.
Judson L. Green, IV, Green & Green, for appellant.
Louie C. Fraser, District Attorney, Robert B. Faircloth, Assistant District Attorney, for appellee.
RUFFIN, Judge.
Following a bench trial, David Sistrunk was found guilty of driving under the influence to the degree he was a less safe driver and failing to stop at a stop sign. On appeal, Sistrunk challenges the sufficiency of the evidence.[1] As we find the evidence sufficient to *351 support the trial court's finding of guilt, we affirm.
On appeal from a criminal conviction, Sistrunk no longer enjoys a presumption of innocence, and we view the evidence in a light favorable to the trial court's finding of guilt.[2] In so doing, we neither weigh the evidence nor assess witness credibility, but merely determine whether there is sufficient evidence from which a rational factfinder could have found the accused guilty beyond a reasonable doubt.[3]
Viewed in this manner, the evidence shows that on February 10, 2005, Officer Steve Drew stopped Sistrunk for failing to yield at a stop sign. During the encounter, Officer Drew smelled alcohol emanating from Sistrunk. Drew performed a preliminary breath test, which confirmed the presence of alcohol.[4] Drew testified that, based upon his training and experience, he believed Sistrunk was intoxicated to the point it was less safe for him to drive. However, Drew admittedly did not perform any additional field sobriety testing, and he conceded that he did not notice any other signs that Sistrunk was intoxicated. Based upon this evidence, the trial court found Sistrunk guilty of driving under the influence to the degree it was less safe for him to drive.
On appeal, Sistrunk argues that the evidence was insufficient to support the trial court's finding of guilt. We disagree.
To sustain a conviction for driving under the influence to the degree it is less safe, the State must prove that alcohol impaired Sistrunk's driving ability.[5] Methods of proving this offense
may include evidence of (i) erratic driving behavior, (ii) refusal to take field sobriety tests and the breath or blood test, and (iii) the officer's own observations (such as smelling alcohol and observing strange behavior) and resulting opinion that the alcohol made it less safe for the defendant to drive.[6]
Furthermore, the commission of a traffic violation can constitute evidence that a driver is impaired.[7] Here, Drew testified that Sistrunk smelled of alcohol, had run a stop sign, and that he believed Sistrunk was a less safe driver as a result of alcohol consumption. Under these circumstances, the evidence although not overwhelmingwas sufficient to support the trial court's finding of guilt.[8]
The case cited by Sistrunk, Ricks v. State,[9] does not require a different result as it is factually distinguishable. In that case, the arresting officer expressly testified the defendant had done nothing to lead the officer to believe that the defendant was impaired by alcohol to the extent it was less safe for him to drive. Accordingly, this case provides no basis for reversing Sistrunk's conviction.[10]
Judgment affirmed.
BLACKBURN, P.J., and BERNES, J., concur.
NOTES
[1]  Specifically, Sistrunk contends the trial court erred in denying his motion for directed verdict. As noted by the State, however, "`the trial court could not have directed a verdict of acquittal because there is no verdict in a bench trial.'" Fluellen v. State, 264 Ga.App. 19, 22, n. 1, 589 S.E.2d 847 (2003). It is apparent that Sistrunk means to challenge the sufficiency of the evidence. And we thus consider the error notwithstanding the fact that the enumeration was not properly worded. See OCGA § 5-6-48(f).
[2]  See Gamble v. State, 283 Ga.App. 326(1), 641 S.E.2d 556 (2007).
[3]  See id.
[4]  Drew also had Sistrunk perform a breath test using an intoxilyzer, but the trial court suppressed the results.
[5]  See Drogan v. State, 272 Ga.App. 645, 647(1)(b), 613 S.E.2d 195 (2005).
[6]  Id.
[7]  See id. at 645, 613 S.E.2d 195 (running a red light); Jones v. State, 273 Ga.App. 192, 193(1)(a), 614 S.E.2d 820 (2005).
[8]  See id.; Drogan, supra; Hoffman v. State, 275 Ga.App. 356, 357-358(1), 620 S.E.2d 598 (2005).
[9]  255 Ga.App. 188, 564 S.E.2d 793 (2002).
[10]  See Drogan, supra.


976 F.2d 934
INGALLS SHIPBUILDING, INC., Petitioner,v.DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, U.S.DEPARTMENT OF LABOR, and Calvin C. Rouse, Respondents.INGALLS SHIPBUILDING, INC., Petitioner,v.DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, U.S.DEPARTMENT OF LABOR, and Annie L. Jackson-Tucker,Respondents.INGALLS SHIPBUILDING, INC., Petitioner,v.DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, U.S.DEPARTMENT OF LABOR, and Catherine L. Benn, Respondents.INGALLS SHIPBUILDING, INC., Petitioner,v.DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, U.S.DEPARTMENT OF LABOR, and Clydia Alford, Respondents.
Nos. 91-4608, 91-4834 to 91-4836.
United States Court of Appeals,Fifth Circuit.
Nov. 5, 1992.

Richard P. Salloum, Traci M. Castille, Franke, Rainey & Salloum, Gulfport, Miss., and George M. Simmerman, Jr., Ingalls Shipbuilding, Inc., Pascagoula, Miss., for Ingalls Shipbuilding, Inc.
Joshua T. Gillelan, III, Marianne Demetral Smith, Carol DeDeo, Associate Sol., U.S. Dept. of Labor, Washington, D.C., John F. Dillon, Rebecca J. Ainsworth, Lowry M. Lomax, Maples & Lomax, Pascagoula, Miss., for respondents.
Lisa L. Lahrman, Dept. of Labor, Washington, D.C., for other interested parties.
Petitions for Review of a Final Order of the Benefits Review Board, United States Department of Labor.
Before POLITZ, Chief Judge, SMITH and BARKSDALE, Circuit Judges.
POLITZ, Chief Judge:

1
Ingalls Shipbuilding, Inc. again seeks relief from statutory penalties for late payment of Longshore and Harbor Workers' Compensation Act1 claims on the basis of a letter of excuse granted by the deputy commissioner2 of the Department of Labor's Office of Workers' Compensation Programs.   Bound by our prior decision holding this letter invalid, and declining to apply the principles of equitable estoppel against the government, we reject the petition for review and affirm the assessment of penalties by the Benefits Review Board.

Background

2
An unprecedented 2,000 hearing loss claims under the LHWCA were filed against Ingalls during an eight-month period.   The statute requires an employer to pay the first installment of compensation within 14 days after he "has knowledge of the injury," unless he files a notice of controversion or obtains a letter of excuse from the deputy commissioner within that time.3  In particular, section 14(e) of the LHWCA provides:

3
If any installment of compensation payable without an award is not paid within fourteen days after it becomes due..., there shall be added to such unpaid installment an amount equal to 10 per centum thereof ..., unless notice [of controversion] is filed ..., or unless such nonpayment is excused by the deputy commissioner after a showing by the employer that owing to conditions over which he had no control such installment could not be paid within the period prescribed for the payment.4

4
On May 11, 1987, Ingalls wrote the deputy commissioner requesting an excuse.   The letter stated:

5
This is to confirm our telephone conversations and your letters ... concerning the high number of hearing loss claims which have been filed with your office and your request that we hold all filings with your office until receipt of notice of claim from your office.   We appreciate the administrative problems caused by the over 2,000 hearing loss claims which have been filed against Ingalls/Litton within the past 8 months and wish to do everything we can to cooperate with you.

6
We are in agreement with your position that the time to respond to a claim and/or make any payment commences after service of that written claim from your office.   However, we would appreciate written confirmation that owing to conditions over which Ingalls/Litton has no control, such response and/or payment cannot be made any earlier.

7
We believe that the administrative burdens currently being visited upon your office can be solved if Ingalls is excused from filing notices, responses, and/or making payments of compensation until 28 days from the date of receipt of the notice of claim from your office, owing to these conditions over which we have no control.

8
The deputy commissioner replied on May 14, 1987:

9
I have received and reviewed your letter of May 11, 1987 regarding the volume of hearing loss claims filed against Ingalls Shipbuilding.   The situation is without precedent in my experience here, and I believe that the granting of the excuse you seek is warranted and within my authority under Section 14(e) of the Act.

10
Effective immediately, Ingalls is excused from filing notices, responses, controversions, and making payments in regard to hearing loss claims which have been filed, or will be filed, until 28 days following service on Ingalls of a claim from this office.   This excuse is in effect until further notice.

11
On April 18, 1988 the deputy commissioner terminated the excuse with a letter explaining:

12
Because of additional temporary staffing to handle just hearing loss claims, we are approaching currency in processing those claims, and the emergency situation present in 1987 no longer exists.   Ingalls, as of the date given above, will be required to comply with Section 14 of the Act upon receipt of any claim for hearing loss.

13
Adjudicating claims filed prior to those at issue herein, the Benefits Review Board found that the May 14 excusal was premised on administrative difficulties in the deputy commissioner's office and consequently was not authorized by section 14(e).5  Difficulties within the deputy commissioner's office, the Board reasoned, did not constitute conditions beyond Ingalls' control which prevented timely payment or controversion because the "employer's duty to pay or controvert the claim is not ... triggered by any action of the deputy commissioner" when the employer learns of the injury directly from the claimant, as Ingalls did with the claims sub judice.   In so holding, the Board specifically noted that "employer's counsel stated repeatedly at the administrative law judge hearing and at oral argument before the Board that it was the deputy commissioner who was experiencing problems, not [the] employer."6  On appeal we upheld the Board's assessment of section 14(e) penalties in Ingalls Shipbuilding, Inc. v. Director, OWCP and Fairley.7

14
The consolidated appellate petitions involve four hearing loss claims with pay-or-controvert deadlines occurring after the issuance of the May 14 excuse letter, unlike those adjudicated in Fairley.   Ingalls failed to pay or to controvert within 14 days of the claimants' notices of injury.   Relying on Fairley, the administrative law judge found the May 14, 1987 excuse letter invalid and assessed statutory penalties;  the Board affirmed.   Ingalls timely petitioned for review of each of the four decisions and we granted its motion to consolidate.

Analysis

15
Contending that it sought the May 14, 1987 respite because of its own administrative overload, Ingalls asks us to find the deputy commissioner's authorization within the ambit of section 14(e) of the LHWCA.   This we cannot do.   Ingalls litigated the basis and validity of the letter in Fairley, the issue was resolved in that proceeding, and the resolution was necessary to the imposition and affirmance of statutory penalties.   Accordingly, federal rules of collateral estoppel prevent our revisiting this issue,8 as does our circuit rule that one panel may not ignore the decision of a prior panel absent intervening legislation or a superseding decision by the Supreme Court or this court en banc.9

16
Alternatively, Ingalls asks us to estop the government from asserting the invalidity of the excuse and assessing penalties.   Distinguishing the instant claims from those adjudicated in Fairley, Ingalls argues that it has shown detrimental reliance on the deputy commissioner's excuse because the May 14 letter was issued before the 14-day deadline to pay the first installments or to controvert the claims.   We decline to estop the government from enforcing the statute.

17
The private litigant who would estop the government bears a very heavy burden.10  Although the Supreme Court has not held that equitable estoppel would never lie against the government, it recently pointedly reminded that it has "reversed every finding of estoppel that [it had] reviewed."11  And as we earlier had explained:

18
In the ... usual case, a party claims that the government is estopped from enforcing an otherwise applicable statute, regulation, or other law against it because it relied upon an erroneous statement or conduct by a government official indicating that the law was not applicable....  In such cases, we are reluctant to estop the government for the simple reason that, were the government barred from enforcing its laws and regulations every time one of its human agents erred, laws that were intended to be generally applicable would become riddled with exceptions.12

19
Accordingly, we have required that a party claiming equitable estoppel establish not only the traditional private law elements13 but also "more than mere negligence, delay, inaction, or failure to follow an internal agency guideline."14

20
This is not a case where estoppel lies.   Ingalls contends that its reliance on the deputy commissioner's excuse was reasonable because the scope of section 14(e) had not been tested prior to Fairley.   For this same reason, Ingalls cannot successfully contend that the deputy commissioner's decision to issue an excuse on the basis of the grounds cited in Ingalls' May 11, 1987 letter of request went beyond "mere negligence."   Ingalls makes no allegation that the deputy commissioner knew that an excuse premised on these grounds was unauthorized or otherwise sought to mislead Ingalls into its present position.   To the contrary, the deputy commissioner merely made an improvident assessment of the scope of his authority under section 14(e).   This scenario evokes exactly the concerns that caution against estopping the government.

21
We recognize the harsh effects of the statutory scheme on employers who incur penalties if they act in reliance on a section 14(e) excuse that later is declared invalid.   As the Court recently noted in commenting on the admittedly harsh effects of another LHWCA provision, however, "Congress has spoken with great clarity to the precise question raised by this case....  It is Congress that has authority to change the statute, not the courts."15

22
Finally, Ingalls urges us to consider its "First Report of Injury or Occupational Illness" the equivalent of a notice of controversion and thereby to find timely controversion in two of the four claims.   Because Ingalls failed to present this argument in the administrative proceedings, we may not consider it here.16

23
Petition for Review is DENIED.

1
 33 U.S.C. § 901 et seq

2
 The deputy commissioner has been retitled district director.  20 C.F.R. § 702.105

3
 33 U.S.C. § 914(b), (d), (e)

4
 33 U.S.C. § 914(e)

5
 Fairley v. Ingalls Shipbuilding, Inc., 22 BRBS 184 (Ben.Rev.Bd.1989) (en banc )

6
 Id

7
 898 F.2d 1088 (5th Cir.1990)

8
 Terrell v. DeConna, 877 F.2d 1267 (5th Cir.1989) (outlining federal rule of issue preclusion);  see Aerojet-General Corp. v. Askew, 511 F.2d 710 (5th Cir.1975) (federal law determines whether a prior federal court judgment is res judicata ), cert. denied sub nom.  Metropolitan Dade County, Fla. v. Aerojet-General Corp., 423 U.S. 908, 96 S.Ct. 210, 46 L.Ed.2d 137 (1975)

9
 See, e.g., Pruitt v. Levi Strauss & Co., 932 F.2d 458 (5th Cir.1991)

10
 Mangaroo v. Nelson, 864 F.2d 1202 (5th Cir.1989)

11
 Office of Personnel Management v. Richmond, 496 U.S. 414, 422, 110 S.Ct. 2465, 2470, 110 L.Ed.2d 387, 398 (1990)

12
 Mangaroo, 864 F.2d at 1205 (citations omitted);  see also Mendrala v. Crown Mortgage Co., 955 F.2d 1132, 1140 (7th Cir.1992) ("As with other claims of estoppel against the government, the question is:  'Who is in charge here, Congress and the President or subordinate officials?' ")  (quoting United States v. Medico Industries, Inc., 784 F.2d 840, 845 (7th Cir.1986))

13
 (1) that the party to be estopped was aware of the facts;  (2) that the party to be estopped intended his act or omission to be acted upon;  (3) that the party asserting estoppel did not have knowledge of the facts;  and (4) that the party asserting estoppel reasonably relied on the conduct of the other to his substantial injury.  Mangaroo, 864 F.2d at 1204

14
 Mangaroo, 864 F.2d at 1204-05, quoting Fano v. O'Neill, 806 F.2d 1262, 1265 (5th Cir.1987)

15
 Estate of Cowart v. Nicklos Drilling Co., et al, --- U.S. ----, ----, 112 S.Ct. 2589, 2598, 120 L.Ed.2d 379, 394 (1992)

16
 State of Texas v. United States, 866 F.2d 1546, 1561 (5th Cir.1989)


IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-1104-12

MICHAEL JACKSON, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FROM THE TWELFTH COURT OF APPEALS
SMITH COUNTY

	Per curiam.  Keasler and Hervey, JJ., dissent.

ORDER

	The petition for discretionary review violates Rule of Appellate Procedure 68.4(i)
& 9.3(b), because it does not contain a copy of the opinion of the court of appeals and the
original petition is not accompanied by 11 copies.
	The petition is struck.  See Rule of Appellate Procedure 68.6.
	The petitioner may redraw the petition.  The redrawn petition and copies must be
filed in the Court of Criminal Appeals within thirty days after the date of this order.
Filed: September 19, 2012
Do Not Publish


54 F.2d 658 (1931)
BEDE STEAM SHIPPING CO., Limited, et al.
v.
NEW YORK TRUST CO. et al.
District Court, S. D. New York.
December 29, 1931.
*659 Bigham, Englar, Jones & Houston, of New York City (Oscar R. Houston, of New York City, of counsel), for defendant Martin H. Ittner in support of motion.
Burlingham, Veeder, Fearey, Clark & Hupper, of New York City (John L. Galey, of New York City, of counsel), opposed.
WOOLSEY, District Judge.
This motion is denied.
I. On November 7, 1931, Judge Coleman granted an order for extraterritorial service on the defendant Martin H. Ittner, pursuant to title 28, U. S. C., § 118, 28 USCA § 118 (Judicial Code, § 57).
This suit does not involve any question of jurisdiction of subject-matter, for it is brought by a British corporation and a subject of Great Britain against a corporation of New York and a citizen of the state of New Jersey, claiming an amount in excess of $3,000, and seeks in part to enforce a lien on certain personal property deposited by defendant Martin H. Ittner with the New York Trust Company as security for the performance of a contract of charter party under circumstances which may be summarized as follows:
On September 10, 1926, a time charter party was entered into between the plaintiff Company, acting through the plaintiff John A. Frew, doing business as Frew Elder & Company, who was its managing owner, and the American General Shipping Corporation, whereby the owner chartered the steamship Bedeburn to the American General Shipping Corporation for a minimum period of three months, with the provision that the charterer should give the owner ten days' notice of redelivery.
The charter party, of which a photostat is annexed to the complaint as Schedule A thereof, provided for a monthly hire at the rate of $1.35 United States currency per ton on it, steamer's dead weight capacity from the time of her delivery to the charterer until her redelivery to her owner.
The charter party contained, inter alia, the following clauses:
"5. Payment of said hire to be made in New York in cash or in approved Bankers sight bills on London, at Owners' option, semi-annually, in advance, and for the last half month or part of same the approximate amount of hire, and should same not cover the actual time, hire is to be paid for the balance day by day, as it becomes due, if so required by Owners, unless bank guarantee or deposit is made by the Charterers, otherwise failing the punctual and regular payment of the hire, or bank guarantee, or any breach of the Charter party as herein specified, the Owners shall be at liberty to withdraw the vessel from the service of the Charterers, without prejudice to any claim they (the Owners) may otherwise have on the Charterers in pursuance of this Charter. Delivery to count from 7 a. m. on the working day following that on which written notice has been given before 4 p. m., but if required by Charterers, loading to commence at once, such time used to count as hire."
"18. That the Owners shall have a lien upon all cargoes, and all sub-freights for any amounts due under this Charter, and the Charterers to have a lien on the Ship for all moneys paid in advance and not earned, and any overpaid hire or excess deposit to be returned at once."
In pursuance of the provision contained in the fifth clause of the charter party above set forth, and in order to furnish the security therein contemplated by deposit in lieu of a bank guaranty which, though common throughout the rest of the world, is almost never obtainable in this country, an agreement was entered into on September 28, 1926, between the president of the charterer, Martin H. Ittner, therein described as of 105 Hudson street, Jersey City, N. J., and the New York Trust Company, and Frew Elder & Company, as agent and managing owner of the steamship Bedeburn, by which it was provided that hire should be remitted through the New York Trust Company to the plaintiff as owner of the Bedeburn, or to its agent, and that "in order to secure the payment of said hire, Martin H. Ittner does hereby deposit with the New York Trust Company U. S. Treasury certificates of indebtedness and cash, to the amount and value of the sum of Ten thousand one hundred twenty-five dollars, receipt whereof the New York Trust Company hereby acknowledges."
It was further provided in this deposit agreement that if one or more installments *660 of hire should become due under the charter party, and should not be paid by the charterer, the New York Trust Company was authorized to pay the amount to the owner or the agent of the Bedeburn in behalf of the charterer out of the cash or proceeds of the certificates so deposited, and, in order to get cash, it was authorized to sell the deposited certificates in its discretion, at the best price in its judgment obtainable after notification to Martin H. Ittner and the American General Shipping Corporation, the charterer, of its intention to make such sale; whereupon they were given the right to make a deposit of cash equal to the principal amount of the certificates in order to prevent their sale.
There was also a provision for the termination of the deposit on duly authenticated information to the New York Trust Company that all installments of hire had been paid, and the amount of the deposit was also to be reduced, on similar authentication, in certain contingencies not of interest to us here.
A provision was also made by which the defendant Martin H. Ittner might substitute for any part of the cash and certificates constituting the deposit, U. S. Treasury certificates deemed by the New York Trust Company to be equivalent to the cash and certificates constituting such original deposit, and the trust company was also entitled to maintain the amount of the deposit by requiring Ittner to deposit additional cash or securities if, in the opinion of the trust company, the amount of the deposit was not sufficient to cover the outstanding obligation of the charterer to the shipowner.
It was further provided that the agreement should not be terminated or modified except in accordance with its terms or the terms of the time charter, without the written consent of the shipowner or its agent; and the trust company should not be liable under it except for gross negligence or willful malfeasance.
The whole agreement was, of course, entered into without prejudice to the time charter; and by its terms an earlier agreement was to be canceled, and the cash and securities deposited thereunder returned to the defendant Ittner.
II. Subsequently, there arose between the owner and the charterer certain disputes under the charter party of which the details are not here of interest.
These disputes resulted in the filing, on the admiralty side of this court, (1) of a libel on behalf of the Bede Steam Shipping Company, as owner of the Bedeburn, against the American General Shipping Company, charterer, and the subfreights on a cargo which the Bedeburn was then about to deliver; and, (2) of a cross-libel by the charterer against the owner.
In view of an arbitration agreement in the charter party, the Federal Arbitration Act, Title 9, U. S. C., §§ 1, 3 and 8 (9 USCA §§ 1, 3, and 8), was invoked after these libels were filed, and by a written agreement between the parties, dated December 12, 1929, Russell T. Mount, Esq., was appointed sole arbitrator to decide the disputes between the parties.
Thereafter the arbitrator heard the parties fully, and wrote a most painstaking and thorough opinion and award on the questions involved, and, subsequently, having reserved the question of damages, he also wrote a supplementary award thereon.
As the net result of the arbitration, it was found that the shipowner was entitled to recover from the charterer a certain sum of money, partly on account of expenditures, advances, and expenses for charterer's account and damages caused by the charterer to the vessel, and partly on account of hire earned by the vessel and not paid by the charterer.
III. On or about October 13, 1931, a decree signed by Judge Bondy was entered on this award, by which it was provided that the items of unpaid hire, with interest, might be satisfied out of the cash and securities pledged with the New York Trust Company under the aforesaid agreement of September 28th, or any other cash or property substituted therefor in the deposit, up to the extent of that deposit, and as to any deficiency in excess of the deposit, the recovery was to go against the charterer, with execution on the owner against its goods, chattels, and lands therefor.
As to the moneys other than charter hire found by the arbitrator to be due, the decree provided that they should be satisfied out of certain moneys seized as subfreights and then on deposit in the office of the clerk of this court.
IV. The bill of complaint in the present suit sets forth in extenso the facts above summarized, and has annexed as schedules thereof the charter party, the deposit agreement, the arbitrator's award, and the final decree entered thereon.
The gravamen of the complaint is three-fold:
*661 First, it seeks to foreclose the lien given to the plaintiff by the deposit agreement of September 28, 1926, hereinabove referred to; and second, to have a deficiency decree against the trust company for cash and/or securities which it is alleged the trust company wrongfully and improperly delivered to Martin H. Ittner without the consent of the plaintiff, and hence in derogation of its fiduciary duty to the plaintiff under the deposit agreement; third, for a deficiency decree against the defendant Ittner for any amount which the lien on the deposit might fail to liquidate.
V. Title 28, U. S. C., § 118 (28 USCA § 118), which was Judicial Code, section 57, deals with service of process on absent defendants in suits to enforce liens, and provides, so far as here material, that an order for extraterritorial service on an absent defendant may issue "in any suit commenced in any district court of the United States to enforce any legal or equitable lien upon or claim to, or to remove any incumbrance or lien or cloud upon the title to real or personal property within the district where such suit is brought."
In pursuance of Judge Coleman's order, issued under this section of the United States Code, the defendant Ittner was served in New Jersey.
VI. That the deposit agreement above described created a lien forecloseable in equity on the securities and cash in the hands of the New York Trust Company is clear from the decisions of the Supreme Court in Ingersoll v. Coram, 211 U. S. 365, 368, 29 S. Ct. 92, 53 L. Ed. 208; Fourth Street Bank v. Yardley, 165 U. S. 634, 644, 17 S. Ct. 439, 41 L. Ed. 855; Walker v. Brown, 165 U. S. 664, 665, 17 S. Ct. 453, 41 L. Ed. 865; and Ketchum v. St. Louis, 101 U. S. 306, 316, 25 L. Ed. 999.
VII. The argument put forward in support of the motion is that there is infirmity in this proceeding, in so far as the defendant Ittner is concerned, because the cause of action stated in the complaint is not limited to the enforcement of the lien against the deposit in the New York Trust Company, but also seeks, as above noted, a deficiency decree against Ittner, and hence is not such a suit as is contemplated by title 28, U. S. C. § 118 (28 USCA § 118).
The fallacy of this contention, in my opinion, is that, although section 118 requires, for substituted service on defendants outside the jurisdiction, that the suit should be brought to enforce a legal or equitable lien upon real or personal property within the district where the suit is pending, it does not say that the suit shall be limited, in the relief sought, to the foreclosure of such lien.
The defendant served outside the jurisdiction is protected in this regard by the provision of section 118 that, if he does not appear in answer to the order served on him, the court issuing the order for substituted service shall be limited in its decree, so far as he is concerned, to the lien sought to be foreclosed on the property within the district of suit and shall not have power to enter any decree in personam against him.
The difficulty of holding that a prayer which goes beyond the foreclosure of a lien and asks for a deficiency decree would preclude the service of a defendant outside the district under the provisions of section 118 is easily illustrated. For example, if a mortgagee should file a bill to foreclose a mortgage on real estate which had been mortgaged to him by a nonresident of the district, he would have to include a prayer for a deficiency decree so that, in the event the mortgaged property did not realize the full amount of the mortgage indebtedness, he would be protected. If he did not do this it might, under the principle which precludes the splitting of causes of action, be considered that he had waived his right to claim such deficiency. Cf. Liberty Mutual Insurance Company v. American Incinerator Co., etc. (D. C.) 51 F.(2d) 739, 741; Sklarsky v. Great Atlantic & Pacific Co. et al. (D. C.) 47 F.(2d) 662, 665; U. S. Fidelity & Guaranty Co. v. Graham & Norton Co., 254 N. Y. 50, 54, 171 N. E. 903; Matter of Zirpola, Inc., v. Casselman, Inc., 237 N. Y. 367, 375, 143 N. E. 222. Also, the bill of complaint would necessarily have to be such as would give the plaintiff his full relief in the event that the defendant, served outside the district, elected to come in and appear generally.
Furthermore, I cannot see how a defendant, served outside the district, would be in any way prejudiced by any prayer for relief which the plaintiff may wish to make in addition to the prayer for foreclosure of a lien on property within the district, because when he is served with a notice to come in and defend he has to decide whether he wishes to allow the lien against the res sought to be foreclosed go by default, or to *662 come in and appear generally and defend the res on which the lien is claimed and his own personal liability as well.
There is, I think, no middle course, as was suggested at the argument, whereby a defendant, served, as here, outside the district, may come in and appear to defend his interest in the res without appearing generally and subjecting himself to any other relief which may be appropriate in the action.
VIII. I believe the point here raised on behalf of Ittner is of first impression. The two cases relied on by his counsel are not, as I read them, determinative of it.
In Grable v. Killits, 282 F. 185 (C. C. A. 6), it was held that Judge Killits had exercised power which he could not properly exercise under Title 28, U. S. C. § 118 (28 USCA § 118), on a service made outside his district. Judge Patterson's decision in Spellman v. Sullivian (D. C.) 43 F.(2d) 762, does not, it seems to me, touch on the question before me.
IX. There is, however, a case in the Court of Appeals for the Sixth circuit which seems to be consonant with what I have said above, although the challenge to service outside the district was not made on the same point as here. The case to which I refer is White v. Ewing, 69 F. 451 (C. C. A. 6) in which the relief sought against defendants, extraterritorially served under section 118, involved prayer for a personal judgment as well as the foreclosure of a lien on property within the district.
There certain defendants who were served by publication appeared in the suit and filed answers. Subsequently, they were allowed to withdraw their answers, but it was held by a very strong court, Judge Taft, Judge Lurton, and Judge Severens, that personal judgments could be entered against the defendants, so extraterritorially served, who had thus appeared. Chief Justice Taft, then Circuit Judge, said at page 454 of 69 F.:
"It is settled in the case of Creighton v. Kerr, 20 Wall. 8, 12, 13 [22 L. Ed. 309], that the leave to withdraw their answers without prejudice to the rights of the complainant did not take away the advantage which the complainant obtained by the voluntary appearance of the defendants, after service by publication, to file answers, and that, therefore, the defendants were in court personally at the time the decrees below were entered, and that the court had jurisdiction, if it was otherwise proper, to enter personal decrees against the defendants upon the complainant's bill."
It is, of course, true that in White v. Ewing the general appearance waived such a point as is here raised, but it is also true that the bill of complaint contained a prayer for personal relief, and was not challenged for that reason by defendants counsel or criticised by the court.
X. Finally, it must be remembered that section 118 is a remedial statute which seeks to obviate within a very narrow zone the inconvenience to litigants of our many territorial subdivisions and thus to promote the administration of justice. Consequently, it "should be liberally construed to accomplish the end in view." McBurney v. Carson, 99 U. S. 567, 569, 25 L. Ed. 378.
Settle order on two days' notice.


272 S.W.2d 343 (1954)
ALLEN CO., Inc.
v.
THOROUGHBRED MOTOR COURT, Inc. et al.
Court of Appeals of Kentucky.
June 4, 1954.
As Modified on Denial of Rehearing November 5, 1954.
*344 Beverly White, Winchester, for appellant.
Hays & Hays, William O. Hays, Winchester, and Robert H. Hays, Lexington, for appellees.
CULLEN, Commissioner.
This action is the outgrowth of a controversy between the parties concerning the performance of a cost-plus contract by which appellant agreed to construct a tourist court for appellees in the city of Winchester. At the time of the termination of the contract, the building was about 75% complete. The appellant claims a balance of $20,426.70 for labor and materials furnished prior to termination of the agreement, under which appellant was to receive the cost of the building plus 10%. The appellees counterclaimed for $19,900 for faulty and unworkmanlike construction. Upon a trial before a jury, lasting for ten days and creating a record of five volumes of testimony, the appellant recovered a verdict for $11,573.55, which is some $8,900 less than the amount which appellant claims to be entitled to recover.
Several grounds for reversal are urged and discussed in the briefs. In the interest of brevity, we shall omit a detailed statement of the facts and discuss only the grounds which, in our opinion, are meritorious and collectively require a reversal.
The appellee, Harry Barnhart, who is president of the appellee Thoroughbred Motor Court, Inc., testified at length as to the diminution in the value of the motor court by reason of the alleged faulty construction. This witness had never bought or sold similar property, although he did know of one such sale in the vicinity.
Under the circumstances, we do not think the qualification of the witness was shown. There must be some basis for a knowledge of market values before a witness may express an opinion as to value.
It has been held that the owner of land is competent to testify to its value, and his estimate is received, although his knowledge on the subject is not such as would qualify him to testify if he were not the owner. Barron v. Phelps, Ky., 238 S.W.2d 1016. However, this Court recently has held that mere ownership of real estate of the character here involved does not qualify a person to testify as to its value. Hipp-Green Lumber Corp. v. Potter, Ky., 271 S.W.2d 892. In any event, the witness Barnhart does not qualify as a landowner, because he is merely an officer of a corporate owner.
*345 Appellant cites seven other instances in which it is urged that incompetent evidence was admitted over objection. A detailed discussion of these complaints would unduly lengthen the opinion and would contribute nothing in the way of enlightenment to the bench and bar. It is sufficient to say that the other evidence to which our attention has been called is competent and no error is reflected in its admission.
Several grounds are assigned in support of the contention that the instructions are erroneous. In the respects indicated, we concur with appellant's contentions.
Instruction 3 permitted the jury to find for appellee a sum not exceeding $1,500 for the cost of redoing faulty work performed by appellant. The evidence for appellees disclosed that only $377.90 was expended for this purpose.
We have often said that the amount of damages recoverable for any specific item is limited by the amount proven in evidence as well as the amount claimed in the pleadings. The amount authorized by the instruction was within the amount sought by the counterclaim but exceeded the amount shown in evidence. In Louisville & N. R. Co. v. Complete Auto Transit, Inc., Ky., 259 S.W.2d 483, we had the converse of the situation presented here. There, the court, by its instruction, had permitted damages in excess of the amount claimed in the petition but within the amount shown by the evidence. As we pointed out in that case, we have no power to correct the error by remittitur. The rule that remittitur may be ordered only when damages improperly recovered are severable from those properly recovered is particularly applicable here since it would be impossible to ascertain how much the jury awarded on this item.
Instruction 5 authorized a recovery for appellees to the extent of any materials used or labor performed which was not reasonably necessary. No separate claim for damages on this account was asserted by either the original or amended counterclaim. Under these circumstances, the instruction should not have been given. It is unnecessary to cite the many cases in which we have consistently held that the instructions must be confined to the issues formed by the pleadings.
Appellant also insists that the contractor is not liable under a cost-plus contract except for fraud or gross neglect. No authority is cited or found in support of this contention, and we are not impressed by appellant's reasoning. It is true that the owner assumes certain risks under a cost-plus contract, such as increases in prices of materials and wages, damage to the structure from fire or wind, and possible error in estimating costs. However, we do not think the owner assumes the risk of careless or improper workmanship on the part of the contractor.
For the reasons indicated, the judgment is reversed for proceedings consistent with this opinion.


89 Ill. App.2d 277 (1967)
231 N.E.2d 459
Rockford Memorial Hospital Association, a Corporation, Plaintiff-Appellant,
v.
Max Wells and Oregon Township, a Municipal Corporation, Defendant-Appellee.
Gen. No. 67-81.
Illinois Appellate Court  Second District.
November 29, 1967.
*278 Pedderson, Menzimer, Conde and Stoner, and Harold Stern, of Rockford, for appellant.
John L. Moore, of Oregon, for appellee.
MR. JUSTICE ABRAHAMSON delivered the opinion of the court.
This action was originally filed by Rockford Memorial Hospital Association on November 22, 1965, against Max Wells and Oregon Township. Count I of the complaint was against Max Wells, who is now deceased, and does not concern us in this appeal. Count II was against Oregon Township to recover for hospital services allegedly rendered Wells from January 21, 1963, when he was admitted as a patient, to his discharge on February 26, 1963, less that portion of the total bill paid by private insurance. The cause was heard by the court without a jury on March 3, 1967, and was taken under advisement at the conclusion of the evidence.
On March 9, 1967, judgment was entered against the plaintiff and on April 4, 1967, the court denied a post-trial motion to vacate the prior judgment and this appeal followed.
*279 The action was brought under section 4-14 of the Public Assistance Code of 1949, as amended (Ill Rev Stats, c 23, par 414, 1961) which provided, in part, as follows:
"414. #4-14. Assistance to the Medically Indigent.) When a person not otherwise eligible for or receiving general assistance under Article IV, or assistance under Articles V, V-B, VI, VII, or VIIA falls sick or dies, not having sufficient money, property or other resources, including income and earnings available to him over a 12 month period, to meet the cost of necessary medical, dental, hospital, boarding or nursing care, or burial, the supervisor of general assistance in the governmental unit in which such person is at the time of his illness or death, shall give or cause to be given to him such care as may be necessary and proper, . .." (Emphasis ours.)
Paragraph 414 further provides that "Eligibility for care as a medical indigent shall be determined in accordance with the rules and regulations of the Commission."
It is agreed that Max Wells was a resident of Oregon Township at the time of his illness in January and February, 1963, and that if he were otherwise eligible for assistance under the Code, that it would be due from Oregon Township under the provisions quoted. The evidence disclosed that Wells was suffering from cancer at the time of his admission to the hospital and that he had a lung removed during this hospitalization. On February 20, 1963, a hospital administrator wrote to Mr. Clarence Anderson, the Oregon Township supervisor of public assistance, and informed him that Wells was "an emergency patient" at the hospital and that they "have only recently been able to determine that he may be medically indigent as that term is defined in the Illinois *280 State Statutes" and that reimbursement was accordingly expected from the township for services rendered. Anderson returned the letter with a cryptic note on the bottom that "Max Wells is not an indigent case by our standards. He has been working and has hospital insurance. Also, I was not notified until after he had left the hospital." On February 26, Wells was discharged from the hospital and returned home.
It was also disclosed that Wells had been adjudicated a bankrupt on the basis of his voluntary petition filed March 5, 1964. The bankruptcy schedules were admitted into evidence and revealed that he had liabilities of $5,522.97 and assets worth $1,100 on the date he filed the petition. Most of the liabilities were medical and hospital bills, but the schedules did not indicate when they were incurred. The bankruptcy petition also stated that Wells was employed as a laborer at the Conover-Kable Piano Company at that time; that he had been so employed for 5 years prior; and that he had earned approximately $4,800 during each of the two years immediately preceding the filing of the petition.
Rule 38.02 of the Illinois Public Aid Commission was in effect at the time in question. That rule provided:
"When it is determined by a source of medical care or funeral director that a sick or deceased person is without sufficient income and resources to meet the cost of necessary medical care or funeral and burial, and a request is being made for Assistance to the Medically Indigent, the source of medical care or funeral director shall notify the supervisor with reasonable promptness of such request and furnish information that the person does not have sufficient resources to pay the medical and/or funeral and burial expense.
"For purpose of this rule, `reasonable promptness' is to be considered notification within five working *281 days. However, if there are extenuating circumstances in any case, the supervisor may extend the period of time for such notification ..."
Rule 38.06 provides that the determination of medical indigency shall include a consideration of "all money, property, or other resources, including assistance from relatives, income and earnings available to the applicant over a 12 month period" beginning one month prior to the month of application.
Prior to the enactment of the Public Assistance Code, the cases held that one who furnished hospitalization or medical assistance to a needy person would be required to notify the appropriate overseer of the poor "within a reasonable time" to be entitled to reimbursement for the services thus rendered. St. Anthony's Hospital of Sisters of St. Francis, Inc. v. County of Fayette and Town of Avena, 313 Ill. App. 653, 40 NE2d 538 (Abst.). In the 1960 case of Rockford Memorial Hospital Ass'n v. Whaples, 25 Ill. App.2d 79, 165 NE2d 523, decided after the Code was in effect, notice furnished by the hospital to the McHenry Township supervisor 23 days after admission of Ruth Whaples as an emergency patient was sufficient notice on the basis of the earlier rule that notice must be furnished "within a reasonable time." Ruth Whaples, then 4 years of age, had been ill with what her mother diagnosed as "Asiatic flu." When her condition worsened, a doctor was consulted in the afternoon of November 11, 1957, who determined that the child had pneumonia and made arrangements to have her admitted to the hospital that evening as an emergency patient. On December 4, the associate director of the hospital advised the township supervisor, by letter, that Ruth was a patient and that the parents were medically indigent. The letter requested an investigation and reimbursement to the hospital for the expenses of the hospitalization. The court concluded that the notice was sufficient under the *282 circumstances, particularly since the supervisor did nothing to either investigate or object to the claim of medical indigency; and, that under the evidence found in the record, the parents of Ruth were medically indigent persons.
[1] The five working-day rule was promulgated by the Commission after the Whaples decision. It is contended by the plaintiff, however, that this case should be determined by the earlier decisions and not the five-day rule since, by reason of the "extenuating circumstances," it is an exception to that rule. However, the record does not indicate any extenuating circumstances that would remove the case from the effect of the rule. Wells was admitted to the hospital on January 21, and signed an admission application. The operation was performed several days after the admission and he was discharged in due course. We do not consider the sole fact that Wells was not a resident of metropolitan Rockford as a sufficient extenuating circumstance as urged by the hospital nor does it appear that Wells was an emergency patient at the time of his admission.
[2, 3] The plaintiff states that the delay in the notice could not possibly have harmed the interests of the township and that, therefore, it would be a mere legalism to deny their claim on that basis. An argument to that end seems to ignore a major reason for the rule. The purpose of the prompt notification is to afford a protection for both the township and the hospital or other source of assistance. An early determination of the question of medical indigency would permit the hospital to make a timely and realistic appraisal of its financial relationship to the patient and to act accordingly.
It also appears to us that the evidential facts in the record before us fail to establish that Wells was a "medical indigent" at the time of his hospitalization. The Whaples case is also the only reported case on that question since the enactment of the Code. In that case, *283 the parents of Ruth Whaples were both unemployed at the time of her hospitalization. Ruth was the oldest of four children and the combined gross income of the parents during the 12-month period was $3,051. The only assets owned by the family were a small equity in a house trailer, an inoperable automobile and a $20 television set. The court concluded that they were properly categorized as "medically indigent."
[4, 5] The evidence in the case before us is that Max Wells was employed and earned $4,800 a year at the time he entered the hospital on January 21, 1963. Although he was married, he did not live with or support his wife and he had no dependent children. Wells had some hospitalization insurance, but apparently few other assets. Any right of the plaintiff to recover against Oregon Township was dependent upon Wells' indigency. The plaintiff had the burden of proof in this respect. We cannot but agree with the trial court that this evidence failed to show that Max Wells was a medical indigent as the term is contemplated by the Public Assistance Code when he entered the hospital. Wells' bankruptcy petition filed March 5, 1964, while relevant, offers very inadequate proof as to his financial condition on January 21, 1963.
In the light of our conclusion on the issues of notice and indigency, we need not consider plaintiff's contention that the trial court improperly excluded the testimony of the credit manager of the hospital to the effect that the charges for the services rendered Wells were "usual and customary."
[6, 7] It was, of course, the function of the trial court, as trier of the facts, to weigh the evidence and formulate its decision. We will not substitute our judgment for that decision where, as here, it is well supported by the record for review. Bennis v. Chicago Transit Authority, 33 Ill. App.2d 334, 341, 179 NE2d 421; Petition of Breger v. Seymour, 74 Ill. App.2d 197, 202, 219 NE2d 265.
*284 The decision of the Circuit Court of Ogle County will be affirmed for the reasons stated.
Judgment affirmed.
DAVIS, P.J. and MORAN, J., concur.