37 F.3d 629
Solisv.Circle K. Corp.*
NO. 93-08078
United States Court of Appeals,Fifth Circuit.
Sept 19, 1994

1
Appeal From:  W.D.Tex.

2
AFFIRMED.

*
 Fed.R.App.P. 34(a);  5th Cir.R. 34.2


     This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
     Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please
     also note that this electronic memorandum opinion may contain computer-generated errors or other
     deviations from the official paper version filed by the Court of Appeals and does not include the
     filing date.

 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 IN THE MATTER OF THE PROTEST
 3 OF TINDALL CORPORATION

 4 NEW MEXICO TAXATION AND
 5 REVENUE DEPARTMENT,

 6          Plaintiff-Appellant,

 7 v.                                                                   NO. 31,194

 8 TINDALL CORPORATION,

 9          Defendant-Appellee.

10 APPEAL FROM THE TAXATION AND REVENUE DEPARTMENT
11 Monica Ontiveros, Hearing Officer

12 Gary K. King, Attorney General
13 Peter A. Breen, Special Assistant Attorney General
14 Santa Fe, NM

15 for Appellant

16 Joe Lennihan
17 Santa Fe, NM

18 for Appellee
 1                             MEMORANDUM OPINION

 2 WECHSLER, Judge.

 3        Appellant New Mexico Taxation and Revenue Department (the Department)

 4 issued Appellee Tindall Corporation (Tindall) a tax assessment for receipts from the

 5 sales of precast concrete prison cells (the cells) sold to six New Mexico counties.

 6 After an administrative hearing, a hearing officer concluded that the receipts from the

 7 sales of the cells were tax deductible sales of tangible personal property to a

 8 government under NMSA 1978, Section 7-9-54(A) (2003). The Department argues

 9 that the hearing officer erred by not determining that the receipts from the sales of the

10 cells were either receipts from construction activities or receipts from the sale of

11 construction materials, both of which are considered a sale of a service and therefore

12 not eligible for the tax deduction under Section 7-9-54(A). We affirm.

13 BACKGROUND

14        On June 30, 2005, the Department issued a tax assessment to Tindall, resulting

15 from an audit that began on October 19, 2004. The Department assessed Tindall a

16 gross receipts tax of $227,173.29 in principal, plus interest, for the tax period of

17 December 31, 1999 through August 31, 2004. The assessment arose out of the

18 receipts from the sales of the cells manufactured by Tindall and sold to six New

19 Mexico counties. Tindall filed a written protest to the assessment on September 25,

                                               2
 1 2005.

 2         A hearing officer conducted a two-day administrative hearing on September 24-

 3 25, 2008 and issued a decision and order on March 21, 2011. In the portion relevant

 4 to this appeal, the hearing officer concluded that the receipts from the sales of the cells

 5 were receipts from the sale of tangible personal property to the government and

 6 therefore were deductible from gross receipts under Section 7-9-54(A). Further, the

 7 hearing officer concluded that the receipts from the sales of the cells were not from

 8 sales of construction materials or components or ingredients of a construction project,

 9 which are taxable under Section 7-9-54(A)(3). The Department filed a timely appeal.

10         On appeal, the Department argues that Tindall’s receipts from the sales of the

11 cells were receipts from the sale of construction services, not tangible personal

12 property, and therefore were subject to the gross receipts tax. The Department argues

13 that the “record shows unquestionably that the activities of [Tindall] were

14 construction.” Alternatively, the Department argues that the receipts from the sales

15 of the cells were receipts from the sale of construction materials and therefore taxable

16 under Section 7-9-54(A)(3).

17 STANDARD OF REVIEW

18         In an appeal from an administrative proceeding, this Court will reverse the

19 hearing officer’s decision only if it was arbitrary and capricious, not supported by

                                                3
 1 substantial evidence, or not in accordance with the law. NMSA 1978, § 7-1-25(C)

 2 (1989). “Substantial evidence is relevant evidence that a reasonable mind would find

 3 adequate to support a conclusion.” Disabled Am. Veterans v. Lakeside Veterans Club,

 4 Inc., 2011-NMCA-099, ¶ 9, 150 N.M. 569, 263 P.3d 911 (internal quotation marks

 5 and citation omitted). “We will not disturb the agency’s factual findings if supported

 6 by substantial evidence[.]” Montaño v. N.M. Real Estate Appraiser’s Bd., 2009-

 7 NMCA-009, ¶ 8, 145 N.M. 494, 200 P.3d 544. To the extent that we engage in

 8 statutory interpretation or apply the facts to the law, our review is de novo. GEA

 9 Integrated Cooling Tech. v. State Taxation & Revenue Dep’t, 2012-NMCA-010, ¶ 5,

10 __ N.M. __, 268 P.3d 48. However, we give some deference to the hearing officer’s

11 reasonable interpretation or application of the law. Id.

12 RECEIPTS FROM SALE OF CONSTRUCTION

13        The Department argues that Tindall’s receipts from the cells were from

14 construction activities and therefore were taxable as receipts from the performance of

15 services. New Mexico law imposes an excise tax on gross receipts from the sales of

16 tangible personal property as well as for the performance of services. NMSA 1978,

17 § 7-9-3.5(A)(1) (2007); NMSA 1978, § 7-9-4 (2010). NMSA 1978, Section 7-9-3(M)

18 (2007) defines “service” as including “construction activities and all tangible personal

19 property that will become an ingredient or component part of a construction project.”

                                              4
 1 NMSA 1978, Section 7-9-3.4(A)(1)(b) (2003), defines “construction” as including

 2 “the building, altering, repairing[,] or demolishing in the ordinary course of business

 3 any . . . building, stadium[,] or other structure[.]”

 4         Under the Department’s regulations, construction includes any prefabricated

 5 buildings that are designed to be permanently affixed to the land, even if

 6 manufactured off-site and assembled at the building site. NMAC 3.2.1.11(F)(1)

 7 (12/30/03). However, the regulations provide that a portable building or a modular

 8 relocatable building is not considered the sale of construction and therefore is the sale

 9 of tangible personal property eligible for the governmental deduction in Section 7-9-

10 54(A). See NMAC 3.2.1.11(F)(2). The regulation defines a portable or modular

11 building as one that is usually manufactured off-site, and which is (1) designed to be

12 relocatable, and (2) when delivered to the installation site, generally requires only the

13 blocking, levelling, and in the case of modular relocatable buildings, joining of

14 modules. Id. The hearing officer concluded that the cells were portable or modular

15 buildings under NMAC 3.2.1.11(F)(2), and therefore the receipts from the sales of the

16 cells were deductible as receipts from selling tangible personal property to a

17 government under Section 7-9-54(A).

18        The Department directs us to evidence adduced at the hearing to support its

19 contention that Tindall engaged in construction activities. First, the Department

                                               5
 1 points out that the cells weighed twenty-five to thirty tons each; contained fixtures,

 2 plumbing, wiring, and 2000 pounds of rebar; were installed onto a precast foundation

 3 that required fastening with high strength steel dowels and grout over several days;

 4 would be fully enclosed and unrecognizable once the jail was completed; and were

 5 built to withstand natural disasters and “600 blows from a sledgehammer.” The

 6 Department argues that the cells are therefore permanent and not portable buildings.

 7 Second, the Department argues that other evidence at the hearing indicates that Tindall

 8 is a company that is engaged in construction, including that Tindall (1) has a general

 9 contractor’s license in New Mexico and other states, (2) used American Institute of

10 Architecture form contracts and used a bid form that “contained terms commonly

11 associated with construction,” (3) fabricated the modules based on customer

12 specifications, (4) participated in the safety meetings of the general contractor and a

13 post-construction walk through with the other contractors, (5) sent employees

14 experienced and trained in construction trades to install the cells, and (6) applied for

15 payment of overtime and for partial completion. Third, the Department points out that

16 Tindall refers to itself as a contractor in several documents or states that it is engaged

17 in construction and characterizes itself as a contractor in its tax returns in Georgia.

18 Although this evidence may support a conclusion that Tindall was engaged in

19 construction activities, this Court will only reverse the factual findings of the hearing

                                               6
 1 officer when the findings are unsupported by substantial evidence. See § 7-1-

 2 25(C)(2); Montaño, 2009-NMCA-009, ¶ 8.

 3        In determining whether substantial evidence supported the hearing officer’s

 4 opposite conclusion that Tindall was not engaged in construction activities, we are

 5 guided by the definition of a portable or modular building set forth in NMAC

 6 3.2.1.11(F)(2). As we noted, the sale of a portable building is not a sale of

 7 construction activities under this regulation and instead is considered the sale of

 8 tangible personal property eligible for the governmental deduction in Section 7-9-

 9 54(A). We therefore turn to whether substantial evidence supports the hearing

10 officer’s conclusion that the cells were portable buildings based on the definition that

11 a portable building is (1) designed to be relocatable, and (2) when delivered to the

12 installation site, generally requires only the blocking, levelling, and in the case of

13 modular relocatable buildings, joining of modules. See NMAC 3.2.1.11(F)(2).

14        First, substantial evidence supported the hearing officer’s conclusion that the

15 cells were designed to be relocatable. The hearing officer cited testimony in its

16 findings that Tindall fully constructed the cells at its plant in Georgia and delivered

17 them by truck or train to its customers. Further, a Tindall sales executive testified that

18 Tindall is in negotiations to sell precast concrete cells overseas for use as hunting

19 lodges and storage units and that the potential customers expressed interest due to the

                                               7
 1 ability to move the cells from one hunting club to another. Further, the sales executive

 2 testified that the manner of placing and removing the cells is substantially similar to

 3 placing or removing a mobile home, and, that in many states, these cells are required

 4 to be registered as mobile homes. This evidence is sufficient for a reasonable

 5 factfinder to conclude that the cells are designed to be relocatable. See Disabled Am.

 6 Veterans, 2011-NMCA-099, ¶ 9.

 7        Second, substantial evidence supported the hearing officer’s conclusion that the

 8 cells only required the blocking, levelling, or joining of modules when delivered to

 9 the installation site. Jerry Long, a crane operator, erector, and rail supervisor for

10 Tindall, testified that, although cranes are used to unload the cells, once Tindall

11 delivered the cells to the installation site, a crew of three to four employees can install

12 the cells to the foundation in thirty minutes, using only a level, a pry-bar, a hammer,

13 and a pipe wrench. The cells are held into place by four to six metal rods that are

14 screwed into the cells and then are grouted to the foundation. The employees level the

15 cells on the foundation using non-stick plastic shims. Again, a reasonable factfinder

16 could conclude from this testimony that the installation process does not require on-

17 site assembly and instead only requires blocking, levelling, and the joining of modules

18 of the cells. See id. ¶ 9. The hearing officer’s determination that the cells were

19 portable or modular relocatable buildings is supported by substantial evidence.

                                                8
 1 RECEIPTS FROM CONSTRUCTION MATERIALS

 2        Alternatively, the Department argues that the receipts from the sales of the cells

 3 are receipts from a sale of construction material and are therefore taxable under

 4 Section 7-9-54(A)(3). Section 7-9-54(A)(3) states that the deduction for sale of

 5 tangible goods to the government does not apply to “receipts from selling construction

 6 material[.]” The Department’s regulations, NMAC 3.2.212.10(B)(2) (5/31/01),

 7 provide that the sale of construction materials is the taxable sale of a service. Section

 8 7-9-3.4(B) defines construction material as “tangible personal property that becomes

 9 or is intended to become an ingredient or component part of a construction project[.]”

10 The hearing officer determined that the Department failed to present credible evidence

11 that the cells became an ingredient or component of a construction project or that

12 Tindall intended the cells to become an ingredient or component of a construction

13 project.

14        The Department apparently concedes that it did not present any evidence that

15 the cells actually became an ingredient or component of a construction project and

16 argues that the “record is replete” with evidence that the cells were intended to

17 become a part of a construction project. In support, the Department again focuses on

18 evidence regarding the appearance, size, weight, and manner of installation of the

19 cells. Further, the Department again argues that the way Tindall conducts its business

                                               9
 1 is characteristic of a contractor. Finally, the Department points out that removing the

 2 cells from the finished jail would require that a portion of the jail be destroyed, that

 3 Tindall has only removed two cells out of a total of 8000 that it has installed over the

 4 years, and that Tindall has never moved a cell to a different location once it has

 5 installed the cell. However, again, we review whether substantial evidence exists to

 6 support the hearing officer’s findings, not whether evidence exists to support an

 7 opposite conclusion. See § 7-1-25(C)(2); Montaño, 2009-NMCA-009, ¶ 8.

 8        Substantial evidence supported the hearing officer’s conclusion that Tindall did

 9 not intend for the cells to become an ingredient or component of a construction

10 project. The hearing officer relied on “numerous documents,” including bid forms,

11 contracts with the counties and applications for payment, that contained “no

12 reference” to a construction project and only indicate that Tindall delivered and

13 erected precast concrete cells to the counties. After reviewing these documents, the

14 hearing officer did not err in how she characterized the documents. The documents

15 only refer to the transactions involving the cells. Further, two of Tindall’s employees

16 testified that cells are sold as separate units and that Tindall has no control over the

17 cells once it delivers the cells to the customers. This evidence is sufficient for a

18 reasonable factfinder to conclude that Tindall sold the cells without the intent that the

19 cells become an ingredient or component of a construction project. See Disabled Am.

                                              10
1 Veterans, 2011-NMCA-099, ¶ 9.          We therefore     affirm the hearing officer’s

2 determination that the cells are not construction materials.

3 CONCLUSION

4        For the foregoing reason, we affirm the hearing officer’s decision and order.

5              IT IS SO ORDERED.

6                                                ______________________________
7                                                JAMES J. WECHSLER, Judge

8 WE CONCUR:

 9 _______________________________
10 RODERICK T. KENNEDY, Judge

11 _______________________________
12 J. MILES HANISEE, Judge

                                            11


                         NONPRECEDENTIAL DISPOSITION
                 To be cited only in accordance with Fed. R. App. P. 32.1

                United States Court of Appeals
                                 For the Seventh Circuit
                                 Chicago, Illinois 60604

                              Submitted September 22, 2016*
                               Decided September 23, 2016

                                          Before

                        MICHAEL S. KANNE, Circuit Judge

                        ANN CLAIRE WILLIAMS, Circuit Judge

                        DIANE S. SYKES, Circuit Judge

No. 16‐1525

JOSEPH REINWAND,                                 Appeal from the United States District
      Plaintiff‐Appellant,                       Court for the Western District of Wisconsin.

      v.                                         No. 15‐cv‐799‐bbc

FRANK BLACKBURN,                                 Barbara B. Crabb,
      Defendant‐Appellee.                        Judge.

                                        O R D E R

        Joseph Reinwand, a Wisconsin prisoner, appeals the dismissal of his complaint
alleging that Dr. Frank Blackburn, a reviewing physician for a disability benefit fund,
committed medical malpractice by opining that Reinwand is not totally disabled. The
district court dismissed the complaint for failure to state a claim. We modify the
judgment to reflect a dismissal for lack of jurisdiction rather than on the merits, and as
modified we affirm.

            * We have unanimously agreed to decide the case without oral argument because

the briefs and record adequately present the facts and legal arguments, and oral
argument would not significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).
No. 16‐1525                                                                        Page 2

       Reinwand had received monthly disability payments through an employee
benefit plan before his incarceration, but those benefits were terminated after
Dr. Blackburn opined that Reinwand was not disabled based on a review of his medical
forms. Reinwand sued the plan itself, its administrator, and Dr. Blackburn, alleging that
they had improperly terminated his disability benefits. The district court dismissed
Dr. Blackburn on the ground that benefit claims under the Employee Retirement Income
Security Act may be brought only against the plan itself and its administrator. See
29 U.S.C. § 1132(d)(2). However, the court allowed Reinwand to proceed against the
plan and its administrator.

       Reinwand then sued Dr. Blackburn a second time alleging that he committed
medical malpractice by giving a “medical diagnosis” without performing a physical
examination. The district court screened the complaint, see 28 U.S.C. § 1915A, and
dismissed it for failure to state a claim. The court construed Reinwand’s allegation as a
renewed attempt to bring a benefits claim under ERISA and repeated its conclusion from
Reinwand’s first suit that Dr. Blackburn is not a proper defendant for such a claim. The
court then explained that Reinwand did not state a claim for malpractice because
Dr. Blackburn never treated him and owed him no duty of care. And to the extent
Reinwand sought to allege a constitutional violation, the court added, Dr. Blackburn is
not a state actor and may not be held liable under 42 U.S.C. § 1983.

       On appeal Reinwand clarifies that he intended to bring only a medical‐
malpractice claim and tells us that the district court mischaracterized his complaint
because “a claim of malpractice is not the same as a claim under ERISA.” Although he
now attempts to portray that state‐law tort as a constitutional violation by asserting that
Dr. Blackburn’s “malpractice” would allow a jury to infer deliberate indifference, this is
insufficient to invoke federal jurisdiction. Moreover, he cannot add new claims on
appeal. County of McHenry v. Ins. Co. of the West, 438 F.3d 813, 819–20 (7th Cir. 2006).
Medical malpractice is not a constitutional violation; “the Eighth Amendment does not
codify common law torts.” Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir. 2008). And
any attempt to amend would be futile because private actors like Dr. Blackburn not
acting under color of state law are not liable for constitutional violations under § 1983.
See West v. Atkins, 487 U.S. 42, 48–49 (1988); Babchuk v. Ind. Univ. Health, Inc., 809 F.3d 966,
968–71 (7th Cir. 2016).

      We MODIFY the judgment to reflect a dismissal for lack of jurisdiction rather
than on the merits, and as modified the judgment is AFFIRMED.


594 N.W.2d 263 (1999)
Martin John KERSTEN, Appellant,
v.
The MINNESOTA MUTUAL LIFE INSURANCE COMPANY, Respondent.
No. C6-98-2080.
Court of Appeals of Minnesota.
June 1, 1999.
*264 Robert E. Wilson, Minneapolis, for appellant.
James R. Crassweller, Christopher J. Melsha, Doherty, Rumble & Butler, P.A., St. Paul, for respondent.
*265 Considered and decided by CRIPPEN, Presiding Judge, AMUNDSON, Judge, and, SHUMAKER, Judge.

OPINION
CRIPPEN, Judge.
The trial court dismissed by summary judgment appellant Martin Kersten's claim that respondent Minnesota Mutual breached its insurance contract when it discontinued payment of disability benefits. Appellant challenges (a) the legal conclusion that his psychological disability is an excluded preexisting condition; and (b) the conclusion on the facts that he failed to prove his disability still existed when disability benefits were terminated.
We reverse and remand for trial proceedings on disputed evidentiary issues.

FACTS
In September 1985, appellant purchased a disability policy from respondent Minnesota Mutual. Eight years later, appellant sustained personal injuries as a result of an automobile accident. Appellant collected benefits under the policy from November 1993 to September 1995, when payments were terminated based on respondent's claim that appellant's disability had ended. In August 1997, appellant initiated this suit.
The trial court first determined that appellant was collaterally estopped from claiming a disability to the extent that it was caused by the September 1993 accident. In 1996, arbitrators had determined in a no-fault proceeding that appellant was entitled to no damages in addition to the no-fault benefits that he had already received.
The court also rejected appellant's claim that he remained disabled due to a psychological condition that was independent of the suffering connected with the accident. The trial court held that: (a) this condition was not covered because it existed before the purchase of the policy in 1985; and (b) as a matter of fact, appellant failed to present any evidence that the condition disabled him when benefits were terminated in October 1995.
Appellant acknowledges that he may be collaterally estopped from claiming a condition that is causally related to the automobile accident. But he claims that there is a genuine issue of material fact as to whether, independent of the accident, he is entitled to coverage for a psychological condition.[1] He asserts that: (a) Minn.Stat. 62A.04, subd. 2 (1998), mandates an incontestability clause that defeats the trial court's legal theory on coverage;[2] and (b) there is evidence of record such that the court erred in determining that he was no longer disabled.

ISSUES
1. Did the trial court err in its legal conclusion that the policy does not cover a preexisting psychological condition?
2. Does the record show a genuine issue of material fact as to whether appellant suffered from a psychological disability in October 1995?

ANALYSIS
On an appeal from a summary judgment, we determine whether the trial court erred in its application of the law and whether there are any genuine issues of material fact. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). In *266 doing so, we must view the evidence in a light most favorable to the party against whom judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993) (citation omitted).

1.
The disability policy provides coverage for a sickness, which is defined in part as "[a] disease or illness which first manifests itself while this policy is in force." Appellant disputes the denial of coverage based upon this definition by pointing to Minn.Stat. § 62A.04, subd. 2, which declares that a disability policy shall provide that after two years from the date of issuance of the policy, no claim can be denied on a preexisting condition that is "not excluded from coverage by name or specific description."[3]
The construction of a statute is a question of law, fully reviewable by this court. Hibbing Educ. Ass'n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn.1985).
Neither the trial court nor respondent questions that the incontestability clause in the policy is inconsistent with the mandate of the statute. Examining this conflict, the court observed that the commissioner had approved the policy with the provision in question. But the record shows that: (a) the commissioner disapproved the policy form if the intent was never to cover a pre-existing condition under a disability income policy that did not, at the time of issuance, exclude that condition by name or specific description; and (b) the Department of Commerce does not have any written record of receiving or approving the policy form.[4]
Citing a Fifth Circuit case, respondent argues that the mandatory incontestability clause and the "first manifest" requirement under its definition of sickness are not inconsistent with each other. See Massachusetts Cas. Ins. Co. v. Forman, 516 F.2d 425, 428 (5th Cir.1975) (holding that the incontestability provisions of the policy did not cause a preexisting illness to be covered because the illness "first manifested" itself before the policy became effective), cert. denied, 424 U.S. 914, 96 S.Ct. 1114, 47 L.Ed.2d 319 (1976). The Massachusetts Casualty holding cannot be followed in the context of Minnesota's statutory law. We cannot ignore the plain language of Minn.Stat. § 62A.04. See State by Beaulieu v. RSJ, Inc. 552 N.W.2d 695, 701 (Minn.1996) (if statute is unambiguous, a court must apply its plain meaning and may engage in no further statutory construction).

2.
Appellant contends that the affidavit submitted by Dr. Thomasson raises a genuine issue regarding his October 1995 condition. The affidavit says that in October *267 1995, and since then, appellant has continuously been suffering from a disabling psychological illness. Respondent first argues that admission of the affidavit is insufficient to create a genuine issue of material fact because it is a contradiction of earlier documents produced by the same witness. To support this argument, respondent cites Banbury v. Omnitrition Int'l, Inc., 533 N.W.2d 876, 881 (Minn.App. 1995) (same principle); but that case governs prior sworn testimony in a deposition and is inapplicable here. The earlier documents respondent refers to consist of forms provided by respondent, on which Dr. Thomasson reports that appellant remains disabled, that his physical impairment is severe but that his depression is "under control." The form does not indicate whether or not this control is due to ongoing treatment. Whatever conclusions might be drawn from the form, Dr. Thomasson's later affidavit establishes a genuine issue of material fact as to whether appellant suffered from a psychological disability in October 1995.
Respondent contends that the Thomasson affidavit is not part of the record because it was not submitted until after July 21, 1998, when the trial court granted the summary judgment motion. On July 27, 1998, appellant submitted a letter to the trial court arguing that he had been deprived of his opportunity to respond to respondent's "additional reply memorandum." In a reply letter, dated August 13, 1998, the trial court stated that it would allow the parties to come in on August 31, 1998 "to complete their record."[5]
The affidavit of Dr. Thomasson, dated August 28, 1998, and delivered to the trial court on August 31, was incorporated into an affidavit of appellant's counsel. On September 4, the trial court denied appellant's request for leave to file a motion to reconsider but expressly acknowledged having examined the affidavit of appellant's counsel, which included the affidavit of Dr. Thomasson. It is evident that the court considered the merits of its earlier decision as part of its assessment of cause for hearing a motion to reconsider and even more evident that the court received the additional evidence as part of the record in the summary judgment motion proceedings.
Respondent also argues that appellant never stated a claim for disability based on a "sickness." The trial court considered appellant's argument that he was disabled as a result of a psychological condition. Respondent failed to raise an objection that this was either beyond proof of loss or the pleadings; therefore, this argument is waived on appeal. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988) (matters not argued and considered in the court below will generally not be considered on appeal).

DECISION
Minn.Stat. § 62A.04, subd. 2, requires that an insurance policy must contain an incontestability clause that precludes, two years after the issuance of the policy, denial of coverage because of a preexisting condition. This prevents denial of coverage based on a policy's definition of sickness requiring that a preexisting illness must "first manifest" itself while the policy is in force. The trial court erred in concluding that the policy precludes coverage of a preexisting psychological condition.
Because the record shows a genuine issue of material fact as to whether appellant suffered a psychological disability in October 1995, we reverse and remand for trial on the disputed fact issues, namely, (a) whether appellant remained disabled in October 1995; and (b) whether that disability was due to causes other than the 1993 accident.
Reversed and remanded.
NOTES
[1]  Before the trial court, appellant also asserted a preexisting degenerative disk disease. That assertion is abandoned on appeal where appellant has briefed only his psychological condition. See Balder v. Haley, 399 N.W.2d 77, 80 (Minn.1987) (failure to brief argument before court of appeals may result in waiver).
[2]  Appellant does not contend that he has established at this stage of the proceedings that his claimed disability, which he says is independent of the accident, arose from conditions first manifested after 1985. It is now immaterial whether that condition was first manifested before or after 1985.
[3]  Minn.Stat. § 62A.04, subd. 2, provides:

Required provisions. Except as provided in subdivision 4 each such policy delivered or issued for delivery to any person in this state shall contain the provisions specified in this subdivision in the words in which the same appear in this section. The insurer may, at its option, substitute for one or more of such provisions corresponding provisions of different wording approved by the commissioner which are in each instance not less favorable in any respect to the insured or the beneficiary.
* * * *
(2) A provision as follows:
* * * *
(b) No claim for loss incurred or disability (as defined in the policy) commencing after two years from the date of issue of this policy shall be reduced or denied on the ground that a disease or physical condition not excluded from coverage by name or specific description effective on the date of loss had existed prior to the effective date of coverage of this policy.
[4]  Minn.Stat. § 62A.02, subds. 1-2 (1998), require that a health plan form shall not be issued until after it has been filed with the commissioner and approved by the commissioner. If the policy contains provisions that do not comply with chapter 62A, the commissioner is required to disapprove the form. See Minn.Stat. § 62A.02, subd. 3 (providing standards for disapproval); see also In re Application of Reserve Life Ins. Co., 402 N.W.2d 631 (Minn.App.1987) (discussing commissioner's power to disapprove policy forms under Minn.Stat. 62A.02).
[5]  The trial court treated counsel's letter as a request for leave to file a motion for reconsideration and subsequently denied the request under Minn. R. Gen. Pract. 115.11.


363 N.W.2d 337 (1985)
In re the Marriage of Madelyn Joyce PEARSON, Petitioner, Respondent,
v.
Lawrence A. PEARSON, Appellant.
No. C5-84-1010.
Court of Appeals of Minnesota.
February 26, 1985.
*338 David H. Conn, Nodland, Conn, Judd & Nordaune, St. Louis Park, for respondent.
Stuart Gale, Bloomington, for appellant.
Heard, considered and decided by SEDGWICK, P.J., and FOLEY and CRIPPEN, JJ.

OPINION
SEDGWICK, Judge.
Husband appeals the property settlement, maintenance and insurance provisions of a dissolution decree. We affirm in part, reverse and remand in part.

FACTS
Lawrence and Madelyn Pearson were both 58 when their 36 year marriage was dissolved in May 1984. During the marriage Lawrence worked as a teacher. His 1983-84 salary was $30,697. He nets approximately $1,700 per month. He has a vested pension which would yield $1,200 per month if he retired immediately. He plans to retire soon. In addition, he has a vested interest in a tax-sheltered annuity with a present value of $19,783.15.
Madelyn worked as a homemaker during the marriage. She has no significant employment history outside the home. From a farm jointly owned with her sister she receives $3,450 per year, less taxes and costs of administration. She had a heart attack in February 1983 and continues to suffer from severe coronary artery disease. She has high medical expenses.
The trial court found that Madelyn's heart condition, her age, and her lack of significant employment history or skills, render her unemployable and in need of continuing maintenance. The dissolution decree ordered Lawrence to pay her $600 per month maintenance until her death or remarriage or until his death or retirement, whichever comes first. It also required him to provide group dependent medical insurance for Madelyn for as long as he is obligated to pay maintenance. If such coverage ceases to be available because he remarries or goes to work for an employer not covered by Minn.Stat. 62A.21, subd. 2a (1980), he must pay additional maintenance sufficient to allow Madelyn to obtain coverage equal to that contemplated by the statute.
The trial court divided the couple's approximately $167,000 worth of marital assets virtually equally. It awarded Lawrence *339 non-marital property worth $22,900, including a home occupied by his mother. The court awarded Madelyn $4,000 worth of coins purchased with inheritance money and a half interest in a farm. The half interest was worth $86,000.
Madelyn acquired the farm in part by inheritance and in part by purchase from her siblings. In 1964 Madelyn's father died, leaving her and each of her six siblings a 1/7 interest in a farm near Litchfield. Madelyn's share of the farm was worth approximately $4,000. She also received approximately $2,500 cash from her father's estate. Madelyn had no checking or savings account of her own, and did not write checks on the parties' joint checking account. Lawrence handled all the family finances. She gave him her inheritance money with the understanding that he would save it for her. He placed the money in the joint checking account.
In 1968 Madelyn and her sister Irene Stuetz arranged to buy their siblings' interest in the farm. They borrowed $19,000 from a bank and each paid $1,500 down to finance the purchase. The bank required both of the women's husbands be listed as obligors on the mortgage, but the property remained solely in the women's names. The farm yielded sufficient income to cover all of the mortgage payments. The loan has been completely repaid.
Lawrence paid Madelyn's $1,500 down payment from their joint checking account. The trial court found that the money came from the inheritance proceeds Madelyn had entrusted to Lawrence earlier.
Lawrence managed the farm until the dissolution. For his services, he received five percent of the gross profits plus expenses.

ISSUES
1. Did the trial court err in finding that the purchase of an interest in a farm was traceable to an inheritance by the wife where part of the inherited funds were placed in an account controlled by the husband.
2. Did the trial court err in ordering the husband to pay maintenance and provide medical insurance for his wife until his retirement?

ANALYSIS

I.
Lawrence contends that the trial court abused its discretion in categorizing Madelyn's entire interest in the farm as non-marital and awarding it to her. Property acquired by either spouse during a marriage is presumed to be marital. Minn. Stat. § 518.54, subd. 5 (1982). However, non-marital property specifically includes assets inherited by one spouse from a third party. Minn.Stat. § 518.54, subd. 5(a). It also includes all or part of an asset acquired through investment of non-marital property, including an inheritance. Minn. Stat. § 518.54, subd. 5(c). Brown v. Brown, 316 N.W.2d 552 (Minn.1982). The party seeking the non-marital classification must show by a preponderance of the evidence that the asset was "acquired in exchange for non-marital property." Kottke v. Kottke, 353 N.W.2d 633, 636 (Minn.Ct. App.1984), pet. for rev. denied, (Minn. Dec. 20, 1984).
Lawrence concedes that 2/14 of Madelyn's 7/14 share of the farm is non-marital property because she inherited it from her father. However, he contends that because the remaining 5/14 share purchased from Madelyn's siblings cannot be traced directly to Madelyn's inheritance it is marital property.
The trial court was correct in finding that the initial investment in the farm of $1,500 was non-marital property of Madelyn. The court erred, however, in finding the balance of the purchase price to have been made with non-marital assets. The 5/14 interest cost $10,000, plus $500 for a land bank bond. The payments on the mortgage have been made from the proceeds of the rental of the land and farm buildings. The income from this land investment, as well as the land purchased from the income, is marital property. *340 Schmitz v. Schmitz, 309 N.W.2d 748 (Minn. 1981).
Under the Woosnam formula, adopted by the Minnesota Supreme Court in Schmitz, Madelyn's non-marital interest is about 40 percent of the current value of her half interest in the farm. See Woosnam v. Woosnam, 587 S.W.2d 262 (Ky. 1979). Correction of the trial court's error increases the $167,000 marital estate by approximately $50,000.

II.
Lawrence also challenges the maintenance and medical insurance provisions of the decree. He contends that the maintenance provision is unreasonable because it would make it financially impossible for him to accept part-time employment after his retirement from the Bloomington Public School system. Similarly, he contends that the decree provision requiring him to provide dependent medical coverage for Madelyn until his retirement would preclude him from accepting employment with an employer not covered by Minn.Stat. 62A.21, subd. 2a (1980). In that case he would have to pay sufficient additional maintenance to allow Madelyn to purchase coverage comparable to that required by the statute. Because of Madelyn's health condition, the cost could be prohibitive.
Both complaints are premature. This court will not speculate upon Lawrence's future employment. If at some later date his acceptance of part-time employment or employment with a non-covered employer creates a hardship, he can seek modification of the decree pursuant to Minn.Stat. § 518.64, subd. 2 (Supp.1983).

DECISION
We remand with instructions that the trial court reconsider the propriety of the marital property division in view of the increase in the marital estate.
Affirmed in part, reversed and remanded in part.


19 A.3d 532 (2011)
COMMONWEALTH of Pennsylvania, Appellee
v.
Andre C. KITTRELL, Appellant.
No. 226 EDA 2010.
Superior Court of Pennsylvania.
Argued January 12, 2011.
Filed March 24, 2011.
Reargument Denied May 25, 2011.
*533 Carolyn A. Castagna, Philadelphia, for appellant.
Jay W. Hannon, Assistant District Attorney, Media, for Commonwealth, appellee.
BEFORE: STEVENS, P.J., FREEDBERG, and PLATT[*], JJ.
OPINION BY FREEDBERG, J.:
Andre C. Kittrell appeals from the judgment of sentence entered on December 18, 2009 in the Court of Common Pleas of Delaware County. We affirm.
The relevant facts underlying this case are taken from the trial court's May 17, 2010 opinion.
In early December 2008, Sergeant Rutherford [of the Lansdowne Borough Police Department] while in an undercover capacity was introduced to a black male known as "Dee" and given his cell phone number, XXX-XXX-XXXX. He contacted "Dee" by cell phone on December 9, 2008, to arrange a meeting to purchase forty ($40.00) dollars worth of crack cocaine, four (4) dime bags. Sergeant Rutherford arranged with "Dee" to meet him at the Summit Inn on Township Line Road in Upper Darby. He called "Dee" around 6:00 p.m. Shortly after this telephone conversation, Sergeant Rutherford arrived at the Summit Inn in an undercover vehicle accompanied in a separate undercover vehicle by Officer Bernhardt and Officer McGoldrick of the Upper Darby Police Department, who were there to conduct surveillance during the transaction.
At approximately 6:40 p.m. that evening (December 9, 2008), a dark blue or black Chevrolet Lumina bearing Pennsylvania Temporary license plate number HCV-9349 pulled into the parking lot behind the Sergeant's vehicle. It was later determined that the registered owner of that license plate was Defendant, Andre Kittrell. Sergeant Rutherford got out of his vehicle and into the rear passenger seat of the Lumina as "Dee" (Defendant Kittrell) was driving the vehicle and a black female was seated in the *534 front passenger seat. While in the rear passenger seat, he gave "Dee," the driver, forty ($40.00) dollars and in return "Dee" gave him four (4) blue baggies. Sergeant Rutherford then asked "Dee" if he was going to hook him up to try to get more cocaine; "Dee" gave him a fifth blue baggie. Sergeant Rutherford then got out of the vehicle and returned to his vehicle. The vehicle driven by "Dee" then left the area. Sergeant Rutherford drove back to the Lansdowne Police Department. It was later determined by laboratory analysis that these five (5) bags each contained crack cocaine.
Sergeant Rutherford again contacted "Dee" by cell phone at the same number previously used on December 15, 2008, and requested to buy forty ($40.00) dollars worth of crack cocaine. In speaking to "Dee" (Defendant Kittrell), the Sergeant arranged to meet him around 6:30 p.m., again at the Summit Inn. Sergeant Rutherford arrived at the Summit Inn and parked in the same area of the lot, the Upper Darby side. Sergeant Rutherford had to wait approximately twenty (20) minutes for "Dee" to arrive. "Dee" was driving the same dark blue or black Chevrolet Lumina, with the same temporary license plate as he was driving on the immediate past date (December 9, 2008). Sergeant Rutherford again got out of his vehicle and got into the rear passenger seat of "Dee's" vehicle. When he got into the vehicle, "Dee" drove around to the front of the building. Sergeant Rutherford handed "Dee" forty ($40.00) dollars in exchange for four (4) small yellow baggies that contained a white substance. "Dee" asked him if he was going to call him again in the future, to which the Sergeant replied "yes." Sergeant Rutherford then exited the Defendant's vehicle, and "Dee" immediately left. Sergeant Rutherford then returned to the Lansdowne Police Department with the drugs.
On December 18, 2008, Sergeant Rutherford again contacted "Dee" through the same cell phone number. He said to "Dee;" "Dee," it's Ken, I got 100 and he said, all right . . . I gotcha." The Sergeant arranged to meet "Dee" once more at the Summit Inn at approximately 6:30 p.m. As discussed, Sergeant Rutherford waited to receive a call back from "Dee." "Dee" did call him back about a quarter to 7:00 p.m. and said, "we're here now." Sergeant Rutherford arrived at the Summit Inn, but "Dee" was not there. He parked his vehicle and waited.
Also, arriving with Sergeant Rutherford to assist were Sergeant Boudwin and Detective Honicker from the Delaware County Criminal Investigation Division, Officer Bernhardt, and Officer McGoldrick from the Upper Darby Police Department, and Sergeant Donegan from the Lansdowne Police Department as on that evening, December 18, 2008, it was decided the ongoing investigation would culminate in a "buy  bust." Officer Bernhardt was designated the "take down" officer on this occasion with responsibility to arrest the suspect.
"Dee" arrived a short time later driving a bluish-gray Chrysler 300 with two (2) passengers. When Sergeant Rutherford got out of his vehicle, he saw that it was "Dee" driving the vehicle. He then gave the preset signal so the arresting officer knew that this was the subject he planned to encounter, "Dee." The entire property of the Summit Inn was surrounded by law enforcement, and it was well lit. Officer Bernhardt and the assisting officers converged from different directions and blocked in the vehicle, and arrested "Dee" as well as the *535 vehicle's passengers, Patrick Becker and Moammar McNeal. As he and the other officers approached the vehicle yelling "Police, Police," Officer Bernhardt saw the driver, "Dee," pass something (drugs) to the front seat passenger which the passenger immediately threw out of the vehicle window onto the ground beside the vehicle, two (2) bags of suspected cocaine. Officer Bernhardt also recovered suspected contraband from "Dee" (Defendant), a large sandwich bag containing smaller, yellow ziplock baggies with a hard, white substance and a clear sandwich bag containing numerous small, clear ziplock baggies with a white chunky substance, cell phones and cash. "Dee" and the two other passengers were then taken to Upper Darby Police Department for processing.
Trial Court Opinion 5/17/10 at 25-29 (internal citations and footnotes omitted).
Appellant was charged with three counts of possession of a controlled substance,[1] three counts of possession with intent to deliver ("PWID")[2] and criminal conspiracy.[3] Appellant waived a preliminary hearing and was bound over for trial on January 29, 2009. Appellant was scheduled to appear for a formal arraignment on February 26, 2009, but did not and a bench warrant was issued. It was later discovered that Appellant was incarcerated in Philadelphia on an unrelated matter on that date.
A pretrial conference took place on April 14, 2009. At that time, the Commonwealth made an oral motion to withdraw the original criminal information and to refile criminal informations consistent with the criminal complaint. The motion was granted. The first information charged Appellant with three counts of PWID; the second with three counts of possession; and the third with two counts of conspiracy.
A nonjury trial took place on July 20, 2009. By verdict dated July 27, 2009, the trial court found Appellant guilty of all charges. Sentencing was scheduled for September 15, 2009. On August 14, 2009, the Commonwealth filed a notice of intent to seek the mandatory minimum sentence pursuant to either 18 Pa.C.S.A § 6317 (Drug-Free School Zones) and/or 18 Pa. C.S.A. § 7508(a)(3)(ii) (Drug Trafficking Sentences and Penalties).
On September 15, 2009, Appellant sought a continuance of his sentencing and also requested that he no longer be represented by trial counsel. The trial court granted the continuance but refused to allow Appellant to completely discharge trial counsel, directing that counsel appear at sentencing to advise Appellant.
On November 20, 2009, Appellant made an oral, pro se motion to dismiss the charges, claiming the trial court lacked jurisdiction. The motion was denied. Appellant then requested to proceed pro se. Based upon its observations of Appellant, the trial court directed that Appellant undergo a competency evaluation. Appellant underwent the evaluation and was found competent.
On December 18, 2009, Appellant made an oral, pro se motion to again continue sentencing, which was denied. Appellant also made an oral, pro se motion for a mistrial, which was likewise denied. The trial court also denied a written, pro se motion filed by Appellant, again seeking dismissal of the charges based upon lack of jurisdiction. Appellant then requested that stand-by counsel resume his direct *536 representation of Appellant. Counsel requested an evidentiary hearing on a newly asserted claim of "sentencing entrapment." After hearing counsel's offer of proof, in which counsel admitted that his claim was wholly based on circumstantial evidence, namely that the police did not arrest Appellant until the third transaction, the motion was denied. Appellant was sentenced to an aggregate term of five (5) to ten (10) years of incarceration, the mandatory minimum sentence having been imposed on the third count of PWID.
Appellant filed the instant, timely appeal. Appellant was ordered to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant requested and was granted an extension of time to file the statement. Appellant filed a timely statement, and the trial court issued an opinion.
On appeal, Appellant raises the following issues for our review:
1. Whether the trial court gave Appellant an illegal sentence as a matter of law by sentencing him to a 5-10 year mandatory minimum under a legal theory articulated in Commonwealth v. Vasquez, that this Court implicitly overruled in later case law?
2. Whether the trial court abused its discretion in refusing to mitigate Appellant's 5-10 years mandatory minimum based on the theory of sentencing entrapment?
Appellant's Brief at 4.
Appellant's first claim, challenging the legality of his sentence, was raised initially in his 1925 statement. While ordinarily an issue raised for the first time in a 1925 statement is waived, a challenge to the legality of sentence claim is not waivable. Commonwealth v. Rush, 959 A.2d 945, 950 (Pa.Super.2008), appeal denied 601 Pa. 696, 972 A.2d 521 (2009). Thus, we will review the claim.
Appellant was sentenced to the mandatory minimum sentence for prior drug trafficking convictions pursuant to 18 Pa.C.S.A. § 7508(a)(3)(ii),[4] and the Pennsylvania Supreme Court's decision in Commonwealth v. Vasquez, 562 Pa. 120, 753 A.2d 807 (2000).
In Vasquez, the defendant was charged in a single criminal information with various counts related to delivery of cocaine on several occasions. Although the defendant did not have prior drug trafficking convictions, the Commonwealth sought the mandatory sentence pursuant to 18 Pa.C.S.A. § 7508 which applies "if at the time of *537 sentencing the defendant has been convicted of another drug trafficking offense." 18 Pa.C.S.A. § 7508(a). Appellant received the mandatory minimum sentence on the second count to which he pleaded guilty, with the first count serving as the predicate offense. On appeal, the Supreme Court held that a conviction in a multiple count complaint can be counted as a prior conviction triggering the enhancement provision of 18 Pa.C.S.A. § 7508. Vasquez, 753 A.2d 807 at 809. See also, Commonwealth v. Williams, 539 Pa. 249, 652 A.2d 283 (1994) (rejecting the argument that the mandatory minimum sentence pursuant to 18 Pa.C.S.A. § 7508(a)(3)(i) applies only if the defendant has a prior drug trafficking conviction at the time he committed the offense); Rush, 959 A.2d at 950 (Section 7508 requires enhanced sentences if, at the time of sentencing, the defendant has already been convicted of a prior drug trafficking offense. "A person who pleads guilty to multiple drug trafficking counts in a consolidated proceeding acquires multiple convictions. When that person then proceeds to sentencing, the enhanced penalty language applies . . ."); Commonwealth v. Boyd, 941 A.2d 1, 7 (Pa.Super.2007) (18 Pa.C.S.A. § 7508(a)(3)(i) is an unambiguous statute; it cannot be rewritten to include a recidivist philosophy).
Appellant acknowledges the applicability of Vasquez and its progeny but argues that Vasquez has been "implicitly overruled" by the Pennsylvania Supreme Court's decisions in Commonwealth v. Jarowecki, 604 Pa. 242, 985 A.2d 955 (2009) and Commonwealth v. Haag, 603 Pa. 46, 981 A.2d 902 (2009). We disagree.
In Jarowecki, the Pennsylvania Supreme Court considered the grading of the defendant's eight simultaneous convictions for possession of child pornography under 18 Pa.C.S.A. § 6312(d)(2).[5] The Supreme Court discussed whether the grading of the child pornography convictions at counts two through eight in a multiple count complaint could be enhanced as a result of the conviction on count 1. The Supreme Court stated that Vasquez addressed "statutory language insufficiently analogous to Section 6312 to provide much guidance . . . and addressed more nuanced and more complex statutory language than that presented in the instant case in Section 6312(d). As a result, we conclude [it] provide[s] limited guidance in interpreting the stark language in Section 6312(d)." Jarowecki, 985 A.2d at 955. The Supreme Court held that unlike Section 7508(a), Section 6312(d) used terms "second offense" and "subsequent offense" which indicate a recidivist philosophy. Id. at 964. The Supreme Court defined a recidivist sentencing philosophy as one designed to "punish more severely offenders who have persevered in criminal activity despite the theoretically beneficial effects of penal discipline[,]" or stated alternately "the purpose of such laws is to enhance punishment when the defendant has exhibited an unwillingness to reform his miscreant ways and to conform his life according to law." Id. at 961 (internal citations and quotation marks omitted). Thus, the Supreme Court concluded that Section 6312(d) does not authorize a sentence enhancement based on simultaneous convictions in a multi-count indictment. Id. at 968-69.
*538 In Haag, the Pennsylvania Supreme Court discussed whether two offenses for driving under the influence ("DUI") occurring within a two hour period are considered first and second offenses under 75 Pa.C.S.A. § 3806,[6] for purposes of imposing a greater mandatory minimum sentence on the "second offense."[7] The Supreme Court held that § 3806 is a recidivist statute so that there to be a "prior offense" under § 3806, there must be a conviction occurring before the present violation. Haag, 981 A.2d at 906. The decision in Haag was grounded upon specific language in the Motor Vehicle Code concerning the application of recidivist sentencing provisions; when asked to apply those provisions the sentencing court must ascertain whether the conviction on the first violation predated the second offense. Id. at 902.
There is nothing in Jarowecki or Haag which "implicitly" overrules Vasquez. The Supreme Court in Jarowecki explicitly distinguished Vasquez, based on the differences in statutory language between § 7508 and § 6312, and the recidivist nature of § 6312. Haag does not reference Vasquez, and its holding is wholly grounded in language specific to the Motor Vehicle Code. Thus, Appellant's argument that his sentence is illegal is without merit.
Appellant's second claim challenges the discretionary aspects of sentence. Preliminarily, we note that "[i]ssues challenging the discretionary aspects of a sentence must be raised in a post-sentence motion or by presenting the claim to the trial court during the sentencing proceedings. Absent such efforts, an objection to a discretionary aspect of a sentence is waived." Commonwealth v. McAfee, 849 A.2d 270, 275 (Pa.Super.2004) (citation omitted), appeal denied, 580 Pa. 695, 860 A.2d 122 (2004) (table).
In the present case, Appellant made an oral motion challenging the sentence on the ground raised herein. As such, we find that Appellant's oral motion preserved the claim now raised on appeal. See McAfee, 849 A.2d at 275.
The right to appeal the discretionary aspects of a sentence is not absolute. See Commonwealth v. Pollard, 832 A.2d 517, 525 (Pa.Super.2003). When an appellant challenges the discretionary aspects of the sentence imposed, he must present a substantial question as to the appropriateness of the sentence. See Commonwealth v. Anderson, 830 A.2d 1013, 1017 (Pa.Super.2003). An appellant must, pursuant to Pennsylvania Rule of Appellate Procedure 2119(f), articulate "that the sentence violates a particular provision of the Sentencing Code or is contrary to the fundamental norms underlying the sentencing scheme." Commonwealth v. Kimbrough, 872 A.2d 1244, 1263 (Pa.Super.2005) (en banc), appeal denied, 585 Pa. 687, 887 A.2d 1240 (2005) (table). Only after an appellant's Rule 2119(f) *539 statement meets these prerequisites can we determine whether a substantial question exists. Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa.Super.2000) (en banc), appeal denied, 563 Pa. 672, 759 A.2d 920 (2000). "Our inquiry must focus on the reasons for which the appeal is sought, in contrast to the facts underlying the appeal, which are necessary only to decide the appeal on the merits." Id. (emphasis in original).
Appellant has included a Pa. R.A.P. 2119(f) statement in his brief in which he argues that he was the victim of sentencing entrapment. This claim states a substantial question. Sentencing entrapment is a federal doctrine which has been adopted by this Court. Commonwealth v. Petzold, 701 A.2d 1363 (Pa.Super.1997). Sentencing entrapment occurs when "a defendant, although predisposed to commit a minor or lesser offense, is entrapped in committing a greater offense subject to greater punishment." Id. at 1365 (internal citation omitted). To succeed on a claim of sentencing entrapment, the defendant must show either "outrageous government conduct" or "extraordinary government misconduct." Id. at 1366. This consists of conduct "so grossly shocking and so outrageous that it violates the universal sense of justice." Id. (internal citation omitted). This standard puts a heavy burden on the defendant, as sentencing entrapment is not established "simply by showing that the idea originated with the government or that the conduct was encouraged by it . . . or that the crime was prolonged beyond the first criminal act . . . or exceeded in degree or kind what the defendant had done before." Id. at 1366-67 (internal citation omitted).
In Petzold, the defendant sold a quarter pound of marijuana to a confidential informant ("CI"), working with the police. Following the first transaction, the CI attempted, unsuccessfully, to make additional purchases from the CI. The defendant refused to make the sales because he was concerned that he was being investigated by the police. Eventually, the police decided to do a reverse sting operation, wherein the CI would provide marijuana to the defendant. When the CI initially contacted the defendant to see if he was interested in splitting ten pounds of marijuana, the defendant said he would "maybe take one." After further discussion, the CI and the defendant agreed to purchase the marijuana and split it.
This Court held that these facts were not sufficient to demonstrate sentencing entrapment because the government did not behave in an outrageous manner and the defendant was not coerced into purchasing more marijuana than he was inclined to buy. This Court stated:
[w]hile the specific amount of illicit drugs was not Appellant's idea, his interest in obtaining the proffered amount is clear from the transcript. Appellant needed little urging from the CI before agreeing to take five pounds of the drug. His reference to another deal which had the potential to generate four thousand dollars toward this purchase, coupled with his insistence that he "could move five," contradict his argument that he was not predisposed to make such a large purchase. Further the ease and promptness with which he accepted the CI's offer belie his assertion that the government ensnared him in a deal which resulted in a stricter sentence than he deserved.
Id. at 1367.
In Commonwealth v. Adams, 760 A.2d 33 (Pa.Super.2000), a CI informed police that the defendant and a co-conspirator were selling cocaine. The CI contacted the co-conspirator and arranged to purchase twenty-three dime bags of cocaine. *540 The delivery was made by the defendant. The next day, the CI arranged with the defendant to purchase five bags of cocaine for $100.00, which the defendant delivered. Approximately one month later, the CI contacted the co-conspirator to purchase another $100.00 of cocaine, the defendant drove to the CI's residence and the co-conspirator entered the residence to deliver the cocaine. The defendant pleaded guilty and, at sentencing, argued sentencing entrapment. Although remanding for resentencing on other grounds, this Court held that Appellant had not proven sentencing entrapment, stating:
[h]ere the record is devoid of outrageous behavior or extraordinary misconduct on the part of the police or the CI. The CI initiated three controlled buys targeting either [the defendant] or [the co-conspirator]. The ease and promptness with which [the defendant] facilitated the transactions contradicts his argument he was entrapped.
Adams, 760 A.2d at 40.
In Commonwealth v. Paul, 925 A.2d 825 (Pa.Super.2007), an undercover police officer purchased one "eight-ball" of methamphetamine from the defendant. The police officer made several subsequent attempts to purchase more methamphetamine from the defendant, but the defendant told him he was not interested in making any further deliveries. The police had several "contacts" encourage the defendant to make an additional sale. Some three weeks after the first sale, the defendant sold two "eight-balls" of methamphetamine to the police officer. At sentencing, the defendant claimed sentencing entrapment and the trial court agreed, refusing to impose the mandatory minimum sentence. This Court reversed stating:
[i]n the absence of a great disparity between the 3.4 grams of methamphetamine distributed at the July 17, 2005 transaction and the 6.8 grams of methamphetamine distributed at the August 8, 2005 transaction, we are not convinced that Appellee had no predisposition to commit the greater offense. The reasons articulated by the trial court to support its findings of sentencing entrapment include that [the police officer] encouraged Appellee to sell him two "eight balls," and that the Commonwealth prolonged the arrest beyond the first criminal act in which Appellee distributed 3.4 grams of methamphetamine.. . . this is not enough to establish sentencing entrapment.
Paul, 925 A.2d at 831 (internal citations omitted).
There is no meaningful difference between the facts in the cases cited above which were not sufficient to constitute sentencing entrapment and those in the instant matter. Here, within minutes of being contacted, Appellant sold Sergeant Rutherford fours bags of crack cocaine and gave him a fifth bag of crack cocaine at a location chosen by Appellant. The bags had an aggregate weight of 0.36 of a gram. Approximately one week later, again, within minutes of being contacted, Appellant met Sergeant Rutherford and sold him four bags of crack cocaine, with an aggregate weight of 0.35 of a gram. Appellant asked Sergeant Rutherford if he would continue to buy from him. Three days later, Sergeant Rutherford contacted Appellant and asked to purchase ten dime bags of crack cocaine, which would have had an approximate weight of 0.70 of a gram. They met at the same location within an hour of the telephone call. Appellant, with no prompting from Sergeant Rutherford, brought nearly 20 grams of crack cocaine, an amount well in excess of what was requested, to the meeting. Appellant has not pointed to any specific example of *541 "outrageous" conduct by the government and has not provided any explanation of how the government was responsible for his being in possession of nearly twenty grams of crack cocaine at the time of his arrest. Thus, the trial court did not abuse its discretion in denying Appellant's request for an evidentiary hearing on his claim of sentencing entrapment.
Judgment of sentence AFFIRMED. Jurisdiction RELINQUISHED.
NOTES
[*]  Retired Senior Judge assigned to the Superior Court.
[1]  35 P.S. § 780-113(a)(16).
[2]  35 P.S. § 780-113(a)(30).
[3]  18 Pa.C.S.A. § 903.
[4]  § 7508. Drug trafficking sentencing and penalties (a) General rule.  Notwithstanding any other provisions of this or any other act to the contrary, the following provisions shall apply:

(3) A person who is convicted of violating section 13(a)(14), (30) or (37) of The Controlled Substance, Drug, Device and Cosmetic Act where the controlled substance is coca leaves or is any salt, compound, derivative or preparation of coca leaves or is any salt, compound, derivative or preparation which is chemically equivalent or identical with any of these substances or is any mixture containing any of these substances except decocainized coca leaves or extracts of coca leaves which (extracts) do not contain cocaine or ecgonine shall, upon conviction, be sentenced to a mandatory minimum term of imprisonment and a fine as set forth in this subsection: (ii) when the aggregate weight of the compound or mixture containing the substance involved is at least ten grams and less than 100 grams; three years in prison and a fine of $15,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity; however, if at the time of sentencing the defendant has been convicted of another drug trafficking offense: five years in prison and $30,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity . . .
[5]  § 6312. Sexual abuse of children

(d) Child pornography.
(2) A first offense under this subsection is a felony of the third degree, and a second or subsequent offense under this subsection is a felony of the second degree.
[6]  Driving After Imbibing Alcohol or Utilizing Drugs

§ 3806. Prior offenses
a) General rule.  Except as set forth in subsection (b), the term "prior offense" as used in this chapter shall mean a conviction, adjudication of delinquency, juvenile consent decree, acceptance of Accelerated Rehabilitative Disposition or other form of preliminary disposition before the sentencing on the present violation . . .
[7]  Defendant Haag was convicted of violating 75 Pa.C.S.A. § 3802(b) (High Rate of Alcohol). If the violation is a first DUI offense the mandatory minimum sentence includes a term of incarceration of no less then 48 consecutive hours, 75 Pa.C.S.A. § 3804(b)(1)(i); if the violation is a second DUI offense, the mandatory minimum sentence includes a term of incarceration of no less than thirty days, 75 Pa.C.S.A. § 3804(b)(2)(i).


415 F.2d 527
UNITED STATES of America, Plaintiff-Appellee,v.James L. TROLLINGER, Jr., Defendant-Appellant.
No. 27229 Summary Calendar.
United States Court of Appeals Fifth Circuit.
August 19, 1969.

Carlton P. Maddox, Dawson, Galant, Maddox, Boyer, Sulik & Nichols, Jacksonville, Fla., for appellant.
Edward F. Boardman, U. S. Atty., Samuel S. Forman, Asst. U. S. Atty., Jacksonville, Fla., for appellee.
Before JOHN R. BROWN, Chief Judge, THORNBERRY and MORGAN, Circuit Judges.
PER CURIAM:

1
Appellant Trollinger was convicted under an indictment charging violation of 18 U.S.C.A. § 2113(a) and 18 U.S.C.A. § 2 (the aider and abettor statute). It is undisputed that Trollinger himself did not personally enter and rob the federally insured bank,1 nor was he present at the escape of the bandit. His conviction is based primarily on the testimony of David Jesse Lee, the armed holdup man, that Trollinger agreed to lend his car to Lee for use in the robbery and aided Lee in preparing a disguise for the venture. Lee testified also that he gave Trollinger $300 for the use of the car according to an agreement the two had made before the robbery.

2
At his trial, Trollinger took the stand and denied much of Lee's story particularly those parts implicating Trollinger as an aider in the crime. The Government, in turn, put on other evidence tending to cast doubt on Trollinger's denials. By its verdict, the jury resolved impliedly the credibility questions in favor of the Government, for they determined that Trollinger was guilty as charged. No question is raised concerning the sufficiency of the evidence.2

3
Trollinger's initial challenge — raised for the first time in this appeal — attacks the sufficiency of the indictment against him. No question having been raised about the sufficiency of the indictment at trial, the pleading must be held sufficient unless it is so defective that it does not, by any reasonable construction, charge an offense for which the defendant is convicted. Cf. United States v. Ellington, 5 Cir., 1969, 406 F.2d 348. See also Hagner v. United States, 1932, 285 U.S. 427, 52 S.Ct. 417, 76 L.Ed. 861; Brant v. United States, 5 Cir., 1955, 218 F.2d 806. See generally 1 C. Wright, Federal Practice and Procedure § 123, at 225-27 (1969).

4
The indictment in this case unquestionably charged Trollinger with violating 18 U.S.C.A. § 2113(a) as a principal, and also referred specifically to the aider and abettor statute, 18 U.S. C.A. § 2.3 Thus the indictment is clearly sufficient to meet the long-recognized standard.4

5
Trollinger's second complaint is directed to the Trial Judge's exclusion of certain character evidence offered on Trollinger's behalf. During the course of the trial, defense counsel called four character witnesses to testify for Trollinger. Three of these witnesses were permitted to testify, but the Trial Judge rejected the proffered testimony of the fourth on the ground that an adequate foundation had not been laid for its admission. Trollinger now assigns this ruling as error.

6
The general rule is well established that rarely and only upon a clear showing of prejudicial abuse of discretion will appellate courts disturb the rulings of trial courts in the matter of character evidence testimony.5 It is clear that in this case the Trial Judge acted well within the bounds of his discretion in rejecting some of the proffered testimony. First, it was not disputed that this witness had not known Trollinger long (about one month), nor had he lived in either of the cities where Trollinger had recently resided and as to which the inquiry was made. In the totality of the circumstances we find no error, much less reversible error, in the Trial Judge's decision to reject the proffered testimony.

7
Next, Trollinger makes two complaints about the charge given to the jury. He argues first that the failure of the Trial Judge to charge the jury on intent was reversible error, even though no request for such a charge was made at the trial. In the view of this Court, however, the Trial Judge adequately charged on the element of intent.

8
Second, he contends that the failure of the Trial Judge to give certain limiting instructions was reversible error. On cross-examination, Trollinger's three character witnesses were asked whether they had heard of another unrelated arrest of the defendant. Trollinger now complains that the Trial Judge failed to instruct the jury that these questions were limited in purpose to rebuttal of the testimony of good character and that they were not to be taken as evidence of guilt of the offense presently charged. At the trial, however, Trollinger's counsel made no objection to the failure to give limiting instructions, and there is no basis in this record for concluding that an error, if it was made, rises to the status of a plain error which should lead to reversal. Cf. Harrison v. United States, 5 Cir., 1968, 387 F.2d 614, 615.

9
Finally, Trollinger claims error in the admission into evidence of statements allegedly taken from him in violation of the requirements of Miranda v. Arizona, 1966, 384 U.S. 436, 456, 86 S.Ct. 1602, 16 L.Ed.2d 694. The statements in question were taken from Trollinger in two different interviews with FBI agents in June 1967. Contrary to Trollinger's position, the record reflects that he was given adequate Miranda warnings on each occasion. Consequently, we find this contention to be without merit.6

10
Affirmed.

Notes:

1
 The testimony of two Government witnesses established that the bank was robbed by a single gunman and that Trollinger was not that man

2
 Pursuant to new Rule 18 of the rules of this Court, we have concluded on the merits that this case is of such character as not to justify oral argument and have directed the Clerk to place the case on the Summary Calendar and to notify the parties in writing. See Murphy v. Houma Well Service, 5 Cir., 1969, 409 F.2d 804 (Part I)

3
 Of course, it is clear that an aider and abettor may be charged as a principal and the words "aid and abet" do not have to appear in the indictment. United States v. Washington, 7 Cir., 1961, 287 F.2d 819, 820-821, cert. denied, 366 U.S. 969, 81 S.Ct. 1933, 6 L.Ed.2d 1259. See also United States v. Lester, 6 Cir., 1966, 363 F.2d 68, cert. denied, 385 U.S. 1002, 87 S.Ct. 705, 17 L.Ed.2d 542

4
 Although we need not, and do not, decide it, we think the indictment would be sufficient even had objection been made at the trial level. It is almost inconceivable that Trollinger could have been prejudiced in any way by the form of the indictment, since it clearly appears that the defense was aware of the particulars of the Government's case

5
 See Michelson v. United States, 1948, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168; Wilcox v. United States, 5 Cir., 1967, 387 F.2d 60; Gandy v. United States, 5 Cir., 1967, 386 F.2d 516; French v. United States, 5 Cir., 1956, 232 F.2d 736

6
 Because of our decision thatMiranda has been complied with, we need not consider the Government's alternative contention that the two interrogations in question were not custodial in nature.


760 So.2d 933 (2000)
THE FLORIDA BAR, Complainant,
v.
Daniel Peter FEINBERG, Respondent.
No. SC93165.
Supreme Court of Florida.
June 1, 2000.
*935 John F. Harkness, Jr., Executive Director, and John A. Boggs, Staff Counsel, Tallahassee, Florida, and Stephen C. Whalen, Assistant Staff Counsel, Tampa, Florida, for Complainant.
Arthur I. Jacobs of Jacobs & Associates, P.A., Fernandina Beach, Florida, for Respondent.
PER CURIAM.
The Florida Bar petitions this Court to review a referee's report recommending that Daniel Peter Feinberg be publicly reprimanded for violating certain Rules Regulating The Florida Bar. We have jurisdiction. See art. V, § 15, Fla. Const.

FACTS
The Bar filed a complaint against Feinberg, alleging that he had spoken with an opposing counsel's client without opposing counsel's awareness, and was later untruthful concerning the events.[1] Upon conclusion of the disciplinary proceedings, the referee issued a report making the following findings of fact.
Feinberg was an Assistant State Attorney working for the felony division of the Charlotte County State Attorney's Office during the relevant time period. In 1996, Feinberg was approached by the private counsel of a criminal defendant charged with drug offenses. The attorney suggested that since the State had a strong case against his client, the only way his client could avoid prison would be to cooperate with the State Attorney's Office and provide assistance to law enforcement. Feinberg, the private attorney, and the defendant subsequently met to discuss a possible arrangement, but no agreement was reached.
The defendant was thereafter rearrested for violating the Department of Corrections' early release program,[2] whereupon his counsel again approached Feinberg in an attempt to negotiate a "deal" for the defendant. Feinberg referred the attorney to two law enforcement officers, who were not interested in effectuating such a "deal." The defendant proceeded to plead guilty to the drug charges.
The defendant later was able to convince the law enforcement authorities that he could provide assistance. The day before his sentencing hearing, the defendant met with law enforcement officers and Feinberg, but his private attorney was not present. At the meeting, Feinberg asked the defendant if he wanted his attorney present, and the defendant said "no." Although it is not entirely clear what the defendant said at this meeting, Feinberg testified:
I'm not 100 percent sure of what he said with regarding [sic] he is fired or he's gonna fire. I know my mind set going out of the meeting is that [the private attorney] is not going to represent [this defendant] anymore, and he is not representing [the defendant] in that meeting. That I know is my mind set.
Accordingly, Feinberg asked the defendant if he wanted court-appointed counsel and the defendant declined.
At the meeting, the defendant, Feinberg and the law enforcement officers reached an agreement through which the defendant, in exchange for providing assistance to law enforcement, would be released *936 from jail and receive house arrest. The defendant then requested that his personal counsel not be advised of the agreement. The defendant asserted that his counsel had connections with the "drug community," meaning persons involved in selling illegal drugs, and if the defendant's agreement was disclosed, word would get back to the "drug community" that he was acting as an informant.[3] Later that same day, the defendant's attorney met with the defendant and the defendant advised him that an agreement had been made with Feinberg and law enforcement officers.
At the sentencing hearing the next day, Feinberg found it "remarkable" to see the attorney appear on the defendant's behalf. Feinberg approached the attorney and told him that he had not prepared the necessary paperwork for sentencing, and that he was going to request a continuance. Feinberg did not mention the deal reached with the defendant, and the continuance was granted.
After the sentencing hearing, Feinberg went to his supervisor to discuss what had occurred (i.e., the defendant telling Feinberg at the meeting with law enforcement officers that he was not represented, and the defendant's attorney subsequently appearing on his behalf at sentencing). Feinberg, with the advice of his supervisor, decided that the defendant's cooperation with the police was a matter separate from the pending criminal charges. Accordingly, Feinberg and his supervisor decided to proceed with the informant arrangement and obtain the defendant's release from jail.
Shortly thereafter, the defendant's attorney confronted Feinberg and inquired if he had met with the defendant. Feinberg responded that he had not. Several days later, the defendant met with Feinberg and entered into a stipulation that the defendant would assist law enforcement.
According to the defendant's attorney, he asked Feinberg on two later occasions if he was meeting with the defendant, and Feinberg responded that he was not. At a later court hearing, the attorney requested a private in-chambers meeting with the judge and Feinberg. The attorney advised the judge as to what had occurred in the defendant's case. At Feinberg's disciplinary hearing, the defendant's counsel testified that Feinberg told the judge he had "done nothing to interfere in the attorney-client relationship between [counsel] and his client." The judge instructed Feinberg and opposing counsel to work out their differences, and the two attorneys agreed to a quasi-mediation session. At the disciplinary hearing, the mediator testified that when the attorney confronted Feinberg about speaking with one of his clients, Feinberg stated, "Well, you know, [counsel], once in awhile as attorneys we have to lie to one another." The mediator testified that within five minutes of making this comment, Feinberg stated that he misspoke. The mediator testified that Feinberg appeared remorseful and stated that he felt he was not getting guidance from his office as to how to handle the situation. The record of this meeting did not indicate whether Feinberg ever disclosed to opposing counsel the contact with the defendant.
The attorney subsequently moved to withdraw as the defendant's counsel and eventually filed a grievance against Feinberg with The Florida Bar. The Bar in turn filed the complaint underlying the present case.
As to guilt, the referee recommended that Feinberg be found guilty of violating rules 4-4.1(a)(requiring truthfulness in statements to others) and 4-4.2 (prohibiting communication with a person represented by counsel). The referee expressed his belief that "Bar Counsel in its Memorandum of Law for Sanctions appears only to request the Court to consider sanctions *937 for [these violations]" and accordingly recommended that Feinberg only be sanctioned for violating rules 4-4.1(a) and 4-4.2. The referee set forth that even if the Bar did seek sanctions on Feinberg's alleged violations of rules 4-8.4(a) (prohibiting knowing violations of the rules), 4-8.4(c) (prohibiting dishonesty, fraud, deceit, and misrepresentation) and 4-8.4(d) (prohibiting attorneys from engaging in conduct in connection with the practice of law that is prejudicial to the administration of justice), he would recommend that Feinberg be found not guilty of violating these rules.
As to discipline, the referee first noted that the defendant had manipulated both his personal attorney and Feinberg to obtain his desired result. The referee stated that he
has no doubt that [the defendant] did indeed advise [Feinberg] not to tell his lawyer ... about a possible substantial assistance deal for fear that his lawyer would somehow communicate this intentionally or unintentionally to others who may put the word out on the street that the Defendant was working for law enforcement. The Referee [finds] that indeed [the defendant] was successful in manipulating law enforcement and [Feinberg] into believing that somehow [defendant's attorney] was involved in illegal narcotics and that [Feinberg] and/or [his] loved ones would be in danger if [opposing counsel] was advised of this deal.
The referee found no aggravating factors in the instant case; however, he did find the following mitigating factors: (a) lack of guidance and supervision (Feinberg went to his supervisor and the supervisor approved Feinberg's conduct); (b) good character or reputation (specifically noting that since the incident in this case, Feinberg has continued to handle cases against the attorney involved in this case, and the attorney has never asked that Feinberg be disqualified); (c) remorse; and (d) absence of selfish motive. Although not listed as a mitigating factor, the referee expressly noted that the defendant was not harmed in any way by Feinberg's misconduct; in fact, he benefitted from Feinberg's actions. The referee also found that Feinberg has continued his duties as an Assistant State Attorney without incident. Finally, the referee expressed his belief that "the chances of [Feinberg] committing another violation of this type are less than zero."
The referee stated that imposing a three-year suspension as recommended by the Bar would destroy Feinberg's career and that "the shame that has been cast on [Feinberg's] character and attendant local publicity about this matter is enough to deter any attorney from committing a like violation." Concluding that Feinberg's "desire to protect [the defendant], along with [his] lack of guidance, combined with ignorance of the law, is what fueled [his] behavior," the referee recommended the following discipline: (1) a public reprimand; (2) a judgment of costs against Feinberg, to be paid in equal monthly installments over a three-year period; (3) a letter of apology from Feinberg to the attorney in this case acknowledging the referee's findings and sanctions imposed; and (4) a letter from Feinberg to the State Attorney of the Twentieth Judicial Circuit acknowledging the referee's findings and sanctions imposed, as well as acknowledging Feinberg's untruthfulness to a fellow member of the Bar, with copies of this letter forwarded to (a) all Assistant State Attorneys in the Twentieth Judicial Circuit; (b) all Assistant Public Defenders in the Twentieth Judicial Circuit; (c) all attorneys in Charlotte County as listed in the Florida Bar Journal; (d) all judges in the Twentieth Judicial Circuit; and (e) all witnesses who testified on Feinberg's behalf.
The Florida Bar has petitioned this Court to review the referee's report.

ANALYSIS
In its petition, the Bar does not contest the referee's findings of fact. Rather, the *938 Bar challenges both the findings of guilt and the discipline recommended by the referee.

A. Guilt
The Bar first argues that it did indeed intend to seek sanctions against Feinberg for violating rules 4-8.4(a), 4-8.4(c) and 4-8.4(d), and that competent substantial evidence is lacking in the record to support the referee's legal conclusion that Feinberg did not violate these rules. "The party contending that the referee's findings of fact and conclusions as to guilt are erroneous carries the burden of demonstrating that there is no evidence in the record to support those findings or that the record evidence clearly contradicts the conclusions." Florida Bar v. Sweeney, 730 So.2d 1269, 1271 (Fla.1998) (quoting Florida Bar v. Spann, 682 So.2d 1070, 1073 (Fla.1996)).
We conclude that the referee's finding that Feinberg is not guilty of violating rules 4-8.4(a), 4-8.4(c) and 4-8.4(d) is simply not supported by the record. First, in his report the referee found that Feinberg violated rules 4-4.1(a) and 4-4.2. Because rule 4-8.4(a) prohibits attorneys from violating the rules of Professional Conduct, of which rules 4-4.1(a) and 4-4.2 are a part, Feinberg is necessarily guilty of violating rule 4-8.4(a).
Second, rule 4-8.4(c) prohibits attorneys from engaging in deceitful conduct. In his report, the referee found that Feinberg "deceived [opposing counsel] in reference to contact with his client on several other occasions." This specific finding of deceit compels the conclusion that Feinberg violated rule 4-8.4(c).
Finally, Rule 4-8.4(d) prohibits attorneys from engaging in conduct that is prejudicial to the administration of justice. This Court has stated that "a lawyer is an officer of the courts and as such is an essential component of the administration of justice." State ex rel. Florida Bar v. Calhoon, 102 So.2d 604, 608 (Fla.1958). This Court has further noted that "[w]hile conduct that actually affects a given proceeding may be prejudicial to the administration of justice, conduct that prejudices our system of justice as a whole also is encompassed by rule 4-8.4(d)." Florida Bar v. Machin, 635 So.2d 938, 939-40 (Fla. 1994). In his report, the referee found that Feinberg, an attorney for the state, deliberately made untruthful statements to a defense attorney in the context of a criminal case. Even though the defendant encouraged and actually benefitted from Feinberg's deception, and even though Feinberg may have believed he had a good motive for being untruthful (i.e., the defendant's alleged fear of his counsel), the fact is clear that Feinberg continued to meet with a criminal defendant even after he was placed on notice that the defendant was represented by counsel. A prosecutor engaging in such conduct impugns the judicial system as a whole because it implies that state prosecutors are willing to undermine the adversarial process. Such is a very dangerous notion that strikes to the heart of our justice system. As such, Feinberg engaged in conduct that was prejudicial to the administration of justice, thereby violating rule 4-8.4(d).
In summary, we adopt the referee's conclusion that Feinberg violated rules 4-4.1(a) and 4-4.2; however, we reject the referee's finding that Feinberg is not guilty of violating rules 4-8.4(a), 4-8.4(c) and 4-8.4(d).

B. Discipline
The Bar next argues that the recommended discipline is too lenient and that a three-year suspension is in order under the facts of this case.
In reviewing a referee's recommendation of discipline, the Court does not "pay the same deference to this recommendation as we do to the guilt recommendation because this Court has the ultimate responsibility to determine the appropriate sanction." Sweeney, 730 So.2d at 1272. However, this Court "will not second-guess a referee's recommended discipline as long *939 as that discipline has a reasonable basis in existing case law." Id. Attorney discipline serves the following three purposes:
First, the judgment must be fair to society, both in terms of protecting the public from unethical conduct and at the same time not denying the public the services of a qualified lawyer as a result of undue harshness in imposing penalty. Second, the judgment must be fair to the respondent, being sufficient to punish a breach of ethics and at the same time encourage reformation and rehabilitation. Third, the judgment must be severe enough to deter others who might be prone or tempted to become involved in like violations.
Florida Bar v. Cibula, 725 So.2d 360, 363 (Fla.1998)(quoting Florida Bar v. Reed, 644 So.2d 1355, 1357 (Fla.1994)).
In Suarez v. State, 481 So.2d 1201, 1206 (Fla.1985), this Court held that it was a clear ethical violation for "a prosecuting attorney to interview a defendant represented by counsel without notice to defense counsel when the defendant requests or acquiesces to the interview." In the instant case, Feinberg was untruthful in discussions with an attorney regarding his meetings with that attorney's client. Further, Feinberg continued to meet privately with a criminal defendant after he discovered that the defendant was still represented by counsel. Truth is critical in the operation of our judicial system and we find such affirmative misrepresentations by any attorney, but especially one who represents the State of Florida, to be disturbing. Feinberg's actions, although generated by good intentions, developed into serious violations which cast a shadow over the integrity of our adversarial system.
Nevertheless, we conclude that the referee's recommended discipline of a public reprimand with the additional conditions listed in the report is appropriate. Our conclusion is primarily based on the unique circumstances of this case. A somewhat clever defendant indicated to Feinberg that he had discharged (or would be discharging) his attorney. The defendant then constructed an arrangement, primarily with law enforcement officers but also with Feinberg's participation, without his counsel being present. The defendant requested that Feinberg not reveal these conversations to his counsel based upon an alleged fear for the defendant's safety (due to the attorney's alleged contacts with the "drug community"). After Feinberg discovered that the defendant was in fact still represented, he sought direction and advice from his supervisor, and his conduct was essentially approved. This placed Feinberg in the extremely volatile situation of having to decide whether to inform opposing counsel of the deal (thereby possibly placing the defendant in danger), or denying inappropriate contact with the defendant each time he was confronted by opposing counsel. Feinberg opted not to reveal his contacts with the defendant.
Although we understand the predicament in which Feinberg found himself, he nevertheless exercised poor judgment by affirmatively misleading and being untruthful with opposing counsel, and continuing to meet with the defendant after realizing that, contrary to the defendant's statements, he was represented by counsel. As is so often the case, had Feinberg simply relied upon the truth when confronted with the facts, the resulting trail of deception would have never occurred. It is this perpetuation of the untruthful approach that aggravates that which may have initially been subject to understanding.

CONCLUSION
In simply imposing a public reprimand in this case, it must be noted that we in no way support Feinberg's conduct in the instant case. Had the unusual circumstances of the instant case not been present, substantially more severe discipline would have been imposed. We conclude by emphasizing that attorneys must be extremely cautious in determining whether to speak with an individual who appears to *940 be represented by counsel. Moreover, as evidenced in the instant case, attorneys must be ever vigilant to avoid inducement into compromising conduct that is detrimental to our judicial system. Attorneys must also be forthright and truthful when confronted with a possible problem.
Accordingly, we hereby reprimand attorney Daniel Peter Feinberg for professional misconduct. The reprimand shall be accomplished by the publication of this opinion. In addition to the reprimand, Feinberg is ordered to comply with the conditions of the referee's report that he write (1) a letter of apology to the attorney in the instant case acknowledging the referee's findings and sanctions imposed, and (2) a letter to the State Attorney of the Twentieth Judicial Circuit acknowledging the referee's findings and sanctions imposed, as well as acknowledging Feinberg's untruthfulness towards a fellow member of the Bar. Copies of Feinberg's letter to the State Attorney shall be forwarded to all Assistant State Attorneys in the Twentieth Judicial Circuit, all Assistant Public Defenders in the Twentieth Judicial Circuit, all attorneys in Charlotte County as listed in the Florida Bar Journal, all judges in the Twentieth Judicial Circuit, and all witnesses who testified on Feinberg's behalf. Judgment is entered for The Florida Bar, 650 Apalachee Parkway, Tallahassee, Florida 32399, for recovery of costs from Daniel Peter Feinberg in the amount of $4,912.87, to be paid in equal monthly installments over a three-year period, for which sum let execution issue.
It is so ordered.
SHAW, ANSTEAD, PARIENTE, LEWIS and QUINCE, JJ., concur.
HARDING, C.J., concurs in part and dissents in part with an opinion, in which WELLS, J., concurs.
HARDING, C.J., concurring in part and dissenting in part.
I concur with the majority as to the findings of guilt. However, I dissent from the acceptance of the recommendation for a public reprimand. I believe that the conduct in this case warrants a thirty-day suspension. See Florida Bar v. Burkich-Burrell, 659 So.2d 1082 (Fla.1995) (attorney who failed to disclose materials to opposing counsel and failed to ensure that information provided to opposing counsel was correct given thirty-day suspension); Florida Bar v. Anderson, 538 So.2d 852 (Fla.1989) (lead attorney who failed to correct brief that misrepresented facts of case to court given thirty-day suspension).
WELLS, J., concurs.
NOTES
[1]  In its complaint, the Bar alleged that Feinberg violated the following Rules Regulating The Florida Bar: 4-4.1(a) (requiring truthfulness in statements to others); 4-4.2 (prohibiting communication with a person represented by counsel); 4-8.4(a) (prohibiting knowing violations of the rules); 4-8.4(c) (prohibiting dishonesty, fraud, deceit, and misrepresentation); and 4-8.4(d) (prohibiting attorneys from engaging in conduct in connection with the practice of law that is prejudicial to the administration of justice).
[2]  The referee does not explain why the defendant was under Department of Corrections supervision. However, the referee does state in his report that the defendant had a criminal history and that the trial court could have sentenced him as a habitual offender for the current drug charges.
[3]  The referee found no merit to the defendant's allegations regarding his attorney's connections with persons involved in selling illegal drugs.