824 S.W.2d 497 (1992)
STATE of Missouri, ex rel., Ahalaam Smith RASHID, Relator,
v.
The Honorable Bernhardt C. DRUMM, Jr., Judge, Division 4, St. Louis County Circuit Court, Respondent.
No. 61142.
Missouri Court of Appeals, Eastern District, Writ Division Two.
February 11, 1992.
Motion for Rehearing and/or Transfer Denied March 9, 1992.
*499 Margo L. Green, Daniel P. Card, II, Love, Lacks & Paule, St. Louis, for relator.
Charles Willis, St. Louis, for respondent.
Motion for Rehearing and/or Transfer to Supreme Court Denied March 9, 1992.
CRANE, Presiding Judge.
Ahalaam Smith Rashid, mother, a United States citizen and resident of St. Louis County, brought a dissolution of marriage action against Adel Mohammed Zaghdi, father, a citizen and resident of Saudi Arabia, in the Circuit Court of St. Louis County. In the action mother sought custody of the parties' six year old daughter, Amirah Adel Zaghdi, a dual citizen whose home was in Saudi Arabia but was physically present in St. Louis County at the commencement of the proceedings. Mother was given temporary custody of the child ex parte. Father filed a motion to set aside the temporary custody order on the grounds of fraud. The trial court treated the motion as a challenge to the jurisdiction of the court to determine child custody. After a two day hearing, the trial court, applying the provisions of the Uniform Child Custody Jurisdiction Act (UCCJA) as enacted in Missouri, § 452.440 et seq., ruled that it did not have jurisdiction to exercise custody jurisdiction and that Saudi Arabia did have jurisdiction, and ordered the child returned to the custody of the father. Mother filed this writ of prohibition to prevent dismissal of the custody proceeding. We granted a provisional writ which we now make absolute on the grounds that the trial court abused its discretion by finding it had no jurisdiction without considering the best interests of the child with respect to a forum under § 452.450.1(4) RSMo 1986.

FACTUAL BACKGROUND
The facts relevant to the issues presented by this writ are undisputed. Mother and father were married on July 28, 1984, in St. Louis County, Missouri, and lived for a short time after the marriage in Belleville, Illinois. Father, a Saudi Arabian citizen, was in this country as a student. In August, 1984, they moved to Lansing, Michigan for two years while father continued his studies. Their daughter Amirah was born in Michigan on September 15, 1985. The family continued to reside in Lansing, Michigan until August, 1986, when father graduated from Lansing Community College and returned to Saudi Arabia. Mother and Amirah returned to St. Louis, Missouri in August, 1986. They remained in St. Louis, Missouri, until December 5, 1986, when they left to join father in Saudi Arabia. The family lived together in Saudi Arabia until March 25, 1987, when mother returned to the United States alone for a seven month visit with her family. Mother returned to Saudi Arabia in October, 1987, and lived with father and Amirah until the beginning of 1988.
Mother left Saudi Arabia through the assistance of the American Embassy on February 13, 1988, and returned to the St. Louis area. Amirah remained in Saudi Arabia with father. Subsequently, father took another wife in Saudi Arabia. On September 19, 1991, father and Amirah came to the United States to visit mother. Upon their arrival in St. Louis, father and Amirah went with mother to the hotel where father was registered. While father was getting his room key, mother left the hotel with Amirah without father's knowledge or consent and kept Amirah with her until she was ordered to produce Amirah in court on November 4, 1991.

PROCEDURAL HISTORY
According to the pleadings there have been no custody or dissolution proceedings relating to this child or to this marriage except those that have been filed in St. Louis County. No proceedings have been instituted in Saudi Arabia nor has any prior decree relating to the custody of the child been entered by any court of any state or foreign country.
On October 31, 1990, mother filed a Petition for Dissolution of Marriage in the Circuit Court of St. Louis County in Cause Number 616940, seeking a dissolution of the marriage and the award of custody of Amirah to father. Mother filed an Amended Petition on August 26, 1991, seeking custody of Amirah for herself. Mother moved to dismiss Cause Number 616940 on *500 September 20, 1991, on the grounds that father had never been served. She filed a new Petition for Dissolution of Marriage on September 20, 1991, in Cause Number 629059 and obtained personal service on father. Mother alleged that she had custody of Amirah in St. Louis County and sought permanent custody. She also sought and obtained an order ex parte granting her temporary child custody. Father filed his Answer, Cross Petition for Dissolution of Marriage, and Motion for Custody Pendente Lite in this Cause on October 28, 1991.
On November 1, 1991, father moved to set aside the temporary custody order on the grounds that it had been obtained by fraud. The trial court treated this as a motion to dismiss the custody determination for lack of jurisdiction. It heard evidence on this issue on November 13 and November 18, 1991, and entered its order sustaining the motion to dismiss. It delayed the effective date of its order to give the parties time to file an application for a writ.
In its order the trial court made the following conclusions:
1. This state is not the home state of the child and was not the home state of the child when this proceeding commenced on September 20, 1991.
2. This state had not been the child's home state within six months prior to the commencement of this proceeding.
3. The child does not have a significant connection with this state.
4. There is not available in this state substantial evidence concerning the child's present or future care, protection, training, and personal relationships.
5. The child has not been abandoned.
6. The child has not been mistreated or abused.
7. The child has not been threatened with mistreatment or abuse.
8. The child is not being neglected and has not been neglected.
9. Although no other state has child custody jurisdiction and no other state has declined to exercise child custody jurisdiction, the Courts in Saudi Arabia have jurisdiction. Although not enacted in this State, Section 23 of the Uniform Child Custody Jurisdiction Act provides that "the general policies of (the) Act extend to the international area."
10. It is just and proper under the circumstances for the Courts of this state to decline to exercise jurisdiction.
The court further concluded, "[p]ursuant to §§ 452.450 and 452.475, RSMo, this Court does not have jurisdiction to make a child custody determination by initial decree."
AVAILABILITY OF UCCJA IN MISSOURI TO DETERMINE JURISDICTION IN AN INTERNATIONAL CUSTODY CASE
Mother first claims the trial court exceeded its jurisdiction in deciding this matter under the UCCJA because the UCCJA, as adopted in Missouri, does not include Section 23 of the uniform act. This section extends the general policies of the act to the international area and provides for recognition and enforcement of custody decrees of other nations under certain circumstances.[1] The Comment to that section provides that the first sentence makes the general policies of the Act applicable to international cases. "This means that the substance of section 1 (not adopted in Missouri) and the principles underlying provisions like sections 6, 7, 8 and 14(a) are to be *501 followed when some of the persons involved are in a foreign country or a foreign custody proceeding is pending." UNIF. CHILD CUSTODY JURISDICTION ACT § 23 comment, 9 U.L.A. 326-27 (1968).
The failure of a state legislature to adopt § 23 has been held to express an intent not to require the enforcement of foreign custody decrees. Minton v. McManus, 9 Ohio App.3d 165, 458 N.E.2d 1292, 1294 (1983). However, we have not been referred to, nor have we found, any case which addresses what a state legislature, by omitting § 23, intends with respect to the application of the other provisions of the UCCJA to an original custody dispute involving a resident of a foreign country.
The trial court used the jurisdictional provisions of the UCCJA (§ 452.450 RSMo 1986 and UCCJA § 3) and the "clean hands" provision (§ 452.475 RSMo 1986 and UCCJA § 8) to determine whether it had jurisdiction. The trial court specifically held in its order "[p]ursuant to §§ 452.450 and 452.475 this court does not have jurisdiction to make a child custody determination by initial decree."

1. Availability of § 452.450 to determine jurisdiction
We will first consider whether the trial court could use § 452.450 to determine if it had jurisdiction. As enacted in Missouri, this section provides that a Missouri court which is competent to decide child custody matters has jurisdiction to make a child custody determination if one of four possible jurisdictional bases exists. This section is a procedural statute which does not create any new substantive rights for any of the parties but merely dictates the forum where custody actions will be heard. Elliott v. Elliott, 612 S.W.2d 889, 892 (Mo. App.1981). The statute supersedes prior Missouri practice under which the courts used the test set out in § 79 of the Restatement Second, Conflict of Laws, to determine child custody jurisdiction. Id. at 893. The statute provides four possible bases for jurisdiction, commonly referred to as the (1) home state (2) significant connection (3) emergency and (4) default or vacuum bases. It recognizes parens patriae jurisdiction under restricted conditions and incorporates the longstanding Missouri public policy supporting jurisdiction where the best interests of the child are served. See Kennedy v. Carman, 471 S.W.2d 275, 281-87 (Mo.App.1971).[2] This jurisdictional provision is sufficiently comprehensive that it may be used to determine jurisdiction irrespective of whether a resident of a foreign country is involved. Moreover, custody decrees made pursuant to the UCCJA are recognized and enforced in other states which have adopted the UCCJA. § 452.500 RSMo 1986; UCCJA § 13. The trial court acted within its authority in using § 452.450 to determine if it had jurisdiction in this international child custody matter.

2. Availability of § 452.475 to determine jurisdiction
We next consider the trial court's use of the "clean hands" provision of § 452.475 to determine whether it had jurisdiction. This section provides, with respect to an initial decree:
If the petitioner for an initial decree has wrongfully taken the child from another state or has engaged in similar reprehensible conduct, the court may decline to exercise jurisdiction if this is just and proper under the circumstances.
Section 452.475.1 RSMo 1986. We do not need to reach the question whether this section is applicable to an international child custody dispute, because the doctrine of unclean hands does not affect a court's jurisdiction but only the court's decision whether it should or should not exercise jurisdiction. 1 McCAHEY, KAUFMAN, KRAUT & ZETT, CHILD CUSTODY AND VISITATION LAW PRACTICE § 4.08[1][2] (1991). This section provides a basis to decline otherwise existing *502 jurisdiction, not to determine jurisdiction, thus the court improperly relied on this section in finding that it had no jurisdiction.

3. Declination of Jurisdiction under § 452.475
Father argues that the trial court declined jurisdiction under § 452.475 and that it was within its discretion to do so. We do not read the trial court's order as a declination of jurisdiction. The court explicitly concluded that "this court does not have jurisdiction to make a child custody determination by initial decree." In its finding number 10, the court ruled it was just and proper under the circumstances for the courts of this state to decline jurisdiction. However, the trial court did not go on to decline jurisdiction. Moreover, once the court found it had no jurisdiction, it could not "decline" jurisdiction it did not otherwise have.
In any event, even if the trial court was inartfully attempting to decline jurisdiction under the clean hands provision, its attempt failed. In order for the court to decline under this section, it would have to have found that petitioner had wrongfully taken the child from another state or have engaged in similar reprehensible conduct. Although there was evidence in the record that mother had secreted the child from the father, the court made no finding in its otherwise detailed order that this or any other conduct constituted "reprehensible conduct" or even if this was the basis for the court's finding that it would be proper to decline jurisdiction.
More importantly, however, the court did not consider whether declination would be in the best interests of the child. The "clean hands" provision is a discretionary ground for denying jurisdiction and does not supersede the best interests of the child. Snow v. Snow, 369 N.W.2d 581, 583 (Minn.Ct.App.1985); O'Neal v. O'Neal, 329 N.W.2d 666, 669 (Iowa 1983). The paramount issue is the welfare of the child rather than the tactics of the parents. It is error to decline jurisdiction on the basis of a parent's conduct without considering the best interests of the child. Nehra v. Uhlar, 168 N.J.Super. 187, 402 A.2d 264, 268-69 (N.J.Super.Ct.App.Div.1979). See also Van Houten v. Van Houten, 156 A.D.2d 694, 549 N.Y.S.2d 452, 454 (1989).
If § 452.475 applies to an international custody dispute in Missouri, and if the trial court had found it otherwise had jurisdiction, the trial court would have had discretion to decline jurisdiction under that provision, only if it found reprehensible conduct and that declination would be in the best interests of the child. However it did not make these findings in support of declining jurisdiction. There was no valid declination of jurisdiction by the trial court.

APPLICATION OF § 452.450 OF THE UCCJA TO THIS ACTION
Alternatively, mother argues that if § 452.450 is used to determine subject matter jurisdiction in this custody proceeding, the trial court had jurisdiction under § 452.450.1(4) because no other state had jurisdiction and it is in the best interests of the child that the Missouri court assume jurisdiction.[3] We find the trial court misapplied the law in determining it had no jurisdiction. The trial court could not, as a matter of law, treat Saudi Arabia as a "state" under this section. In addition, it abused its discretion in determining it had no jurisdiction without considering the best interests of the child with respect to a forum.
Subsection (4) of § 452.450.1, is the "default" or "vacuum" basis of jurisdiction, which provides:
It appears that no other state would have jurisdiction under prerequisites substantially in accordance with subdivision (1), (2), or (3), or another state has declined to exercise jurisdiction on the ground that this State is the more appropriate forum to determine the custody of the child, and it is in the best interest of the child that this court assume jurisdiction.
*503 The comment to this section in the UCCJA provides: "Paragraph (4) of subsection (a) provides a final basis for jurisdiction which is subsidiary in nature. It is to be resorted to only if no other state could, or would, assume jurisdiction under the other criteria of this section." UNIF. CHILD CUSTODY JURISDICTION ACT § 3 comment, 9 U.L.A. 145 (1968).
In its finding number 9, the trial court found that although no other state has child custody jurisdiction, "the Courts in Saudi Arabia do have jurisdiction" and "the policies of (the) act extend to the international area" under § 23 of the UCCJA. The term "state" as used in the UCCJA has been held not to include foreign nations where the legislature has not adopted § 23 of the UCCJA. Minton, 458 N.E.2d at 1294.[4] Since Missouri has not adopted § 23 of the UCCJA, it is clear that the legislature did not intend the word "state" as used in § 452.450 to include a foreign country. Because "state" does not include a foreign country under § 452.450.1(4) and because Missouri has not adopted § 23 of the UCCJA, Saudi Arabia as a matter of law cannot have jurisdiction either as a "state" or under the policy provisions of § 23 of the UCCJA.
Two elements of jurisdiction under § 452.450.1(4) were met. No other state had jurisdiction and the child was physically present in the state at the commencement of the proceedings.[5] In order to determine if it had jurisdiction under § 452.450.1(4), the trial court was then required to address the best interests of the child. Creavin v. Moloney, 773 S.W.2d 698, 704-705 (Tex.Ct.App.1989); In re Marriage of Arnold, 222 Cal.App.3d 499, 271 Cal.Rptr. 624 (1990).
The determination of the best interests of the child under § 452.450.1(4) refers to a choice of a forum, not to the fitness of the parents. See, State ex rel. Laws v. Higgins, 734 S.W.2d 274, 278 (Mo.App. 1987) (interpreting phrase as used in § 452.450.1(2)). As an initial matter it must be determined if there is any other forum which can and will adjudicate the custody proceedings. This is significant because, if there is no other forum which can and will adjudicate custody, then the best interests of the child are served by a custody determination in the forum where the child is physically present. Dobyns v. Dobyns, 650 S.W.2d 701, 707 (Mo.App. 1983). See also, Massey v. Massey, 89 A.D.2d 566, 452 N.Y.S.2d 101, 103 (1982); McFaull v. McFaull, 560 So.2d 1013, 1014 (La.Ct.App.1990); Schmidt v. Schmidt, 227 N.J.Super. 528, 548 A.2d 195, 198-99 (N.J.Super.Ct.App.Div.1988); Creavin, 773 S.W.2d at 704.[6]
*504 The fact that no other state has jurisdiction is not dispositive of the question of the availability of another forum. Although Missouri has not extended the UCCJA to the international area, the paramount concern of Missouri in a custody proceeding is the best interests of the child. These interests may require that custody be determined by the courts of a foreign country. Accordingly, a Missouri court may find that a court of a foreign country is an available forum to adjudicate custody. The trial court did conclude that the courts of Saudi Arabia had jurisdiction. However, this conclusion was based on a misinterpretation of law and not on a determination of which forum was in the best interests of the child after considering relevant factors.
Although relevant factors will vary on a case by case basis, in this case the primary inquiry is whether there is an available foreign forum which would have jurisdiction substantially in accord with the principles in the UCCJA. Suarez Ortega, 465 So.2d at 609; Klont, 342 N.W.2d at 550-51. In determining whether a foreign forum is available, consideration must be given to whether the foreign forum could and would adjudicate the controversy. See, e.g. § 452.470.3 (UNIF. CHILD CUSTODY JURISDICTION ACT § 7(d), 9 U.L.A. 233 (1968)) (applying these factors in the forum non conveniens situation). See also, Creavin, 773 S.W.2d at 704 (Ireland was not an available forum where, because absolute divorce cannot be obtained in Ireland, the courts in Ireland do not have any power over the children of a marriage). Another factor is whether minimum due process, including notice and the opportunity to be heard, will be accorded in the foreign proceeding. See Schmidt, 548 A.2d at 198; Klont, 342 N.W.2d at 550-51; Al-Fassi v. Al-Fassi, 433 So.2d 664, 666 (Fla.Dist.Ct.App.1983).[7] A further factor is whether the foreign forum will be guided by the best interests of the child in awarding custody. See, Al-Fassi, 433 So.2d at 668. If there is an available foreign forum meeting this criteria, then the court should consider which forum has the strongest basis for jurisdiction under § 452.450.1.
The trial court did hear evidence relating to the child's ties to and home in Saudi Arabia, but there was no evidence relating to child custody laws in Saudi Arabia, whether courts there could and would adjudicate the controversy, if minimum due process would be accorded all parties to the proceedings, or if the best interests of the child would guide the custody determination. It did not make any findings on the best interests of the child with respect to a forum. Without considering these factors and making a determination of the best interests of the child, the court exceeded its authority in finding that it had no jurisdiction under § 452.450 and that the courts of Saudi Arabia had jurisdiction over this child custody proceeding. Likewise, without evidence on these factors the record is insufficient for us to reach the question of whether the trial court does or does not have jurisdiction under this section.
Although the trial court exceeded its authority in determining it had no jurisdiction on the record before it, the trial court is not prohibited from reexamining the question of jurisdiction on a proper record. Such a record would include evidence on whether there is another available forum. Such an inquiry would encompass consideration of the following factors:
1. Whether that forum would have jurisdiction substantially in accord with the principles of the UCCJA.
2. If that forum could and will adjudicate the custody matter.
*505 3. Whether that forum would accord minimum due process including notice and the opportunity to be heard.
4. Whether that forum would decide custody on the best interests of the child.
If there is another available forum then the court should consider which of the available forums has the strongest basis for jurisdiction in accordance with the principles in § 452.450.1.
It is mother's burden, as the proponent of jurisdiction, to establish a prima facie basis of jurisdiction. State ex rel. Laws v. Higgins, 734 S.W.2d 274, 277 (Mo. App.1987). Although mother did not make that record at the first hearing below, she is not precluded from doing so in a future proceeding. Kilgore v. Kilgore, 666 S.W.2d 923, 932-34 (Mo.App.1984). The prior hearing in the trial court proceeded under a misunderstanding of law on the part of all participants due to the lack of judicial precedent governing jurisdiction of international custody disputes in a state which had not adopted the international provisions of the UCCJA.[8] The best interests of the child require that the trial court determine where jurisdiction properly lies and that a court with jurisdiction will adjudicate custody.
In determining the best interests of the child with respect to forum, evidence relating to the best interests of the child with respect to custody is irrelevant. Such evidence is only appropriate in a hearing to determine custody. Furthermore the jurisdictional issue is limited to determining whether another forum is available with jurisdiction which will determine the child custody issue in accord with minimum due process and award custody on the basis of the best interests of the child. Collateral matters relating to the culture, mores, customs, religion, or social practices in that other forum are not only irrelevant to the question of jurisdiction but also such cultural comparisons have no place in the ultimate custody award. See e.g. Waites v. Waites, 567 S.W.2d 326, 333 (Mo. banc 1978).
The provisional writ of prohibition is made absolute.
SATZ, J., concurs.
SMITH, J., dissents in separate attached opinion.
SMITH, Judge, dissenting.
I respectfully dissent.
Some additional exposition of the facts which were either not disputed or which were supported by evidence and supportive of the trial court's order is warranted.
While the parties were married in St. Louis County they never resided in Missouri during the marriage. The return of mother and daughter to St. Louis for three or four months in 1986 was to enable father to obtain the necessary visas and other documentation for the movement of mother and daughter to Saudi Arabia. St. Louis was not intended to be the domicile for either. During the marriage mother converted to the Islamic faith. In preparation for that conversion she studied the religious documents and tenets of that faith including its doctrines concerning the status and treatment of women. During the time the daughter lived in Saudi Arabia, nearly five years, mother lived with her for approximately six months, and did not reside with the child after the child was 2 and ½ years old. The circumstances under which the mother left Saudi Arabia were sharply contested. Her testimony placed the cause upon physical and/or mental abuse by the father. His testimony indicated marital problems and her dissatisfaction with social conditions involving women in that country. The court was free to credit the father's testimony. The daughter speaks only Arabic and is Islamic by religion. She attends school in Saudi *506 Arabia. She is, in addition to her American citizenship by virtue of her birth here, a Saudi citizen by virtue of her father's citizenship.
After mother's final return to this country, father visited her on several occasions while she was hospitalized for mental problems. He did not bring the daughter with him on those visits. There is evidence in the record that these hospitalizations followed suicide attempts. There is also evidence that husband attempted to reconcile on several occasions. These attempts were unsuccessful. Father's marriage to a second wife is permissible under the laws of his country and that was known to mother prior to her marriage to father.
Father came to St. Louis with the daughter in order to allow a visitation with the mother and for the family to return to Saudi Arabia. Mother arranged for this flight after representing her intention to reconcile. At the time of the return a petition for dissolution of marriage, filed by the mother, was pending in St. Louis county. The original petition sought custody to be placed with father with reasonable visitation for the mother. Father had received a copy of that petition. The record does not reflect that father received a copy of the amended petition requesting custody be placed in mother. Mother met father and daughter at the airport. They proceeded to a hotel arranged for by mother. A mix-up occurred with the keys to father's room and he returned to the lobby to obtain the correct keys. During his absence mother took the daughter and left in a taxi-cab leaving no indication of her destination. Father went to the home of mother's mother where he was promptly served with the present petition for dissolution seeking custody in the mother, the prior petition having been dismissed by mother shortly prior thereto. Mother then obtained, ex parte, an order of temporary custody and an adult abuse order preventing father from contacting mother or daughter. Mother subsequently refused to produce the child until a body attachment was issued.
Father is employed full-time by Saudi Arabia Air Lines. He is, pending resolution of this matter, on "open vacation" from that company. Mother is unemployed. She has in the past been a student at several different educational institutions. Her support comes from Social Security disability benefits arising from her mental problems and includes benefits she obtained for her daughter after she took custody at the hotel. The record does not indicate whether she is entitled to and is receiving the benefits during the pendency of this matter while the child is in foster care. Mother professes that the mental disability no longer exists but that she remains entitled to the benefits so long as she maintains her status as a student. Mother receives continuing medical treatment as a manic depressive.
Initially, I am unable to concur in the conclusion that the trial court did not decline jurisdiction under the provisions of § 452.475, RSMo 1986. The court specifically stated in paragraph 10 of its order that it was declining jurisdiction. The language utilized was "It is just and proper under the circumstances for the Courts of this state to decline to exercise jurisdiction." (Emphasis supplied). The statute involved provides that the "court may decline to exercise jurisdiction if this is just and proper under the circumstances." (Emphasis supplied).[1] I find it more than coincidental that the court utilized the exact statutory language found in § 452.475 in expressing its declination of jurisdiction. It is hypertechnical to hold that the failure to expressly cite the statute in paragraph 10 establishes non-reliance on that statute in declining jurisdiction when the language utilized to decline jurisdiction is taken verbatim from the statute. Furthermore the court specifically referred to § 452.475 in the following paragraph where it stated it did not have jurisdiction. Section 452.475 deals exclusively with declination of jurisdiction not absence of jurisdiction. I cannot accept that the trial court did not recognize *507 that. The court's finding that "pursuant to §§ 452.450 and 452.475, RSMo, this Court does not have jurisdiction to make a child custody determination by initial decree" was, in my opinion, simply a shorthand means of invoking both statutes thereby expressing its finding that it lacked jurisdiction and was declining jurisdiction. This is reinforced by the fact that the matter, as it came before the court, was on the motion of the father to dismiss the request for custody on the basis of fraud and reprehensible conduct, the latter of which is the ground for declination of jurisdiction set forth in the statute. The trial court regarded this motion as a request to dismiss for lack of jurisdiction and much of the evidence adduced at the hearing dealt with that subject matter. The issue was before the court and the court's order was, in my opinion, based at least in part, on its finding of "reprehensible conduct" under § 452.475.
Such a finding is fully supported by the evidence. Father was lured into the jurisdiction under a misrepresentation that mother wanted to reconcile and return to Saudi Arabia. The child was brought so mother and child could visit. The only document concerning custody of which the father was apparently aware was mother's initial petition for dissolution requesting custody in the father. Within an hour after arrival in St. Louis mother spirited the child away without advice as to the child's location. Within a matter of hours the new petition for dissolution seeking custody in the mother was served on the father when he sought to locate the child through mother's mother. The trial court could well conclude that the actions of the mother were the product of a predetermined scheme to fraudulently entice the father into the country, abduct the child in his custody, and obtain personal service of her theretofore undisclosed petition seeking custody. The six year old child was removed surreptitiously from the custody of the only person she knew in this country, deprived of the only person with whom she could effectively communicate (mother's knowledge of Arabic was, by her own admission, rudimentary), and kept in this incommunicado state from September 20 until November 4 when she was surrendered to the juvenile court pursuant to the body attachment. Such conduct can well be classified as "reprehensible".
Nor am I troubled by the failure of the court to make specific findings of reprehensible conduct. The statute does not require such findings and our usual rules of review of a trial court's decision is to determine if the evidence supports the holding the court has made. Here it does. If the absence of findings constitutes a problem, however, the proper recourse is to return the matter to the trial court for the entry of the requisite findings, in this case whether the mother's conduct meets the requirements of declination of jurisdiction under § 452.475 and whether that is the basis of the court's order.
Further, I am unable to conclude that the court was in error in determining that it lacked jurisdiction. The court made a very specific set of findings in support of its conclusion that it lacked jurisdiction.[2] These holdings closely track the provisions *508 of § 452.450 which establish the circumstances under which the court should exercise jurisdiction. No challenge is made to any of these findings. The only attacks made are (1) that the procedures in Saudi Arabia will not give the mother a fair chance to obtain custody and (2) that the social climate, mores, and religious atmosphere in Saudi Arabia makes custody in the mother in this country "in the best interest of the child." The majority in upholding attack (1) concludes that the mother must be given an opportunity to establish that the "best interests of the child" require that the determination of custody be made in this state. She has, of course, had that opportunity and did not make the showing. I do not find the authorities relied upon by the majority to support this conclusion persuasive. Most involve situations where the child had been within the state for some period of time and had some connection with the state. The forum state had available the information of the child's previous care and treatment necessary to address the custody issue. That is not true here. None of the cases encompassed a situation such as this where the child had no recent connection at all with the state, was present therein on a transitory basis because of the misrepresentations of the parent seeking custody where the parent seeking custody had not functioned as a parent for over three years, and the parent seeking custody abducted the child from the only custodial parent.
Nowhere in any of the documents filed in the trial court or in this court has the mother asserted any basis for her conclusion that the best interests of the child warrant custody in her or that the courts of this state are in a position to make a determination of the best interests of the child. Nor does the record establish that it is in the "best interest of the child" that this state assume jurisdiction. As stated by the guardian ad litem to this court: "The interest of the child is served when the forum has optimum access to relevant evidence about the child and family. There must be maximum rather than minimum contact with the State. State of Missouri ex rel. June Lloyd Laws v. Higgins, 734 S.W.2d 274 (Mo.App.1987)." As the court specifically found "there is not available in this state substantial evidence concerning the child's present or future care, protection, training, and personal relationships." There is nothing in the record to indicate any error in the court's findings 1 through 9, and mother makes no challenge to those findings. I am unable to conclude that any basis exists for a determination that it is in the best interest of the child that a court in this state assume jurisdiction nor can I perceive any evidence not heretofore provided which would support such a determination.
As to attack (2) I do not believe it provides any basis for exercise of jurisdiction in this state. In the first place the mother offered only hearsay evidence of the social circumstances in Saudi Arabia, which was rejected by the trial court. But more importantly it is not the concern of the courts of this country to evaluate the socio-economic status of persons having dual citizenship living in foreign countries. The child here knows no culture other than that of Saudi Arabia and knows no family other than that of her father. She was taken to Saudi Arabia at a young age by her mother who knew or should have known of that nation's culture. In this court the guardian ad litem, an experienced and respected member of the bar, has stated that the child herself is very bright for her age, is well behaved and shows every evidence of good parenting, home training and care. He, further, expresses his support for the court's order. Nothing in the mother's history indicates that she would provide any better parenting than that provided by the father. To punish the father because of the social environment of his country simply because we disapprove of that environment, and to uproot the child from the only environment and family she has ever known because of that same disapproval, is totally beyond the function of the courts of this state.
I find nothing in this record to warrant a finding that the court abused its discretion or erred in its application of the law in the *509 order which it has entered. I would quash the preliminary writ.
NOTES
[1]  This section reads:

§ 23. [International Application]
The general policies of this Act extend to the international area. The provisions of this Act relating to the recognition and enforcement of custody decrees of other states apply to custody decrees and decrees involving legal institutions similar in nature to custody institutions rendered by appropriate authorities of other nations if reasonable notice and opportunity to be heard were given to all affected persons.
UNIF. CHILD CUSTODY JURISDICTION ACT § 23, 9 U.L.A. 326 (1968).
[2]  "The UCCJA deliberately provided for jurisdictional flexibility to insure procurement of its dominant concern, the best interests of children. Some stability and certainty as to child custody jurisdiction was sacrificed where the best interests of the child presumably call for an assumption of jurisdiction by a state other than the home state." Foster, Child Custody Jurisdiction: UCCJA and PKPA, 27 N.Y.L.SCH.L.REV. 297, 302 (1981).
[3]  Mother does not attack the trial court's findings 1-8 which would support a finding that the trial court did not have jurisdiction under § 452.450.1(1)-(3).
[4]  Jurisdictions which have adopted § 23 take different approaches to the question of whether or not the word "state" includes a foreign country. See e.g. Klein v. Klein, 141 Misc.2d. 174, 533 N.Y.S.2d 211 (N.Y.Sup.Ct.1988) (Israel not a "state" within the definition of the statute); Massey v. Massey, 89 A.D.2d 566, 452 N.Y.S.2d 101 (1982) (Quebec, Canada not a state); In re Marriage of Arnold, 222 Cal.App.3d 499, 271 Cal.Rptr. 624 (1990) (Canada a "state" because UCCJA has international application). In those jurisdictions which have adopted § 23, but do not include a foreign country in the definition of "state," deference to the laws of other nations under the UCCJA is decided on the basis of whether child custody law in the foreign country is similar to the UCCJA, see, Lotte U. v. Leo U., 128 Misc.2d 896, 491 N.Y.S.2d 581 (N.Y.Fam. Ct.1985) (Jurisdiction of Switzerland not recognized because based solely on domicile of father); Suarez Ortega v. Pujals de Suarez, 465 So.2d 607, 609 (Fla.Dist.Ct.App.1985) (Mexico would exercise jurisdiction in accord with principles embodied in UCCJA); Klont v. Klont, 130 Mich.App. 138, 342 N.W.2d 549, 550-51 (1983) (West Germany exercised jurisdiction in accord with principles of UCCJA), and whether basic due process is observed. Garza v. Harney, 726 S.W.2d 198, 200 (Tex.Ct.App.1987).
[5]  See § 452.450.2 (UNIF. CHILD CUSTODY JURISDICTION ACT § 3(b), 9 U.L.A. 144 (1968)). "Physical presence of the child may also be sufficient for a residual jurisdiction provided by section 3(a)(4) of the Act to assure the parties of a forum when no other court has or is prepared to exercise jurisdiction under the two main criteria of the Act." Bodenheimer, The Uniform Child Custody Jurisdiction Act: A Legislative Remedy for Children Caught in the Conflict of Laws, 22 VAND. L.REV. 1207, 1230 (1969). See also, Blakesley, Child Custody Jurisdiction and Procedure, 35 EMORY L.J. 291, 300 (1986).
[6]  Contrary to the assertion in the dissent, some of these cases involve situations in which the child had been in this country on a transitory basis for a very short time. In Schmidt the child had been living in West Germany, and was taken to New Jersey without notice to his father by his mother, who filed a custody petition the day they arrived in New Jersey. In Massey the child had been living in Canada with her mother. She came to New York to visit her father and he refused to return her. The New York custody proceeding was commenced 10 days after her arrival in New York.
[7]  These cases and the previous cases cited in this paragraph are all cases arising in jurisdictions in which the UCCJA has international application. Although Missouri has not adopted UCCJA § 23, if a Missouri court is going to recognize foreign country jurisdiction under a best interests of the child analysis, the minimum standards used in these other jurisdictions should apply.
[8]  Mother apparently proceeded under the premise that the UCCJA did not apply because § 23 had not been adopted in Missouri and that therefore § 79 Restatement Second, Conflict of Laws would apply under which child's mere physical presence in the state and/or presence of the parents in the state was sufficient grounds for jurisdiction. Although we have rejected it, her position that prior law would govern was not without some logical support.
[1]  Nothing in the statute conditions that declination on a determination that the best interests of the child require adjudication in this forum.
[2]  "1. This state is not the home state of the child and was not the home state of the child when this proceeding commenced on September 20, 1991.

"2. This state had not been the child's home state within six months prior to the commencement of this proceeding.
"3. The child does not have a significant connection with this state.
"4. There is not available in this state substantial evidence concerning the child's present or future care, protection, training, and personal relationships.
"5. The child has not been abandoned.
"6. The child has not been mistreated or abused.
"7. The child has not been threatened with mistreatment or abuse.
"8. The child is not being neglected and has not been neglected.
"9. Although no other state has child custody jurisdiction and no other state has declined to exercise child custody jurisdiction, the Courts in Saudi Arabia have jurisdiction. Although not enacted in this State, Section 23 of the Uniform Child Custody Jurisdiction Act provides that `the general policies of (the) Act extend to the international area.'
"10. It is just and proper under the circumstances for the Courts of this state to decline to exercise jurisdiction."


104 F.2d 230 (1939)
L. SONNEBORN SONS, Inc.
v.
COE, Com'r of Patents.
No. 7126.
United States Court of Appeals for the District of Columbia.
Decided March 20, 1939.
Rehearing Denied May 18, 1939.
Charles S. Grindle, of Washington, D. C., and Joseph V. Meigs, of New York City, for appellant.
R. F. Whitehead, Solicitor, United States Patent Office, of Washington, D. C., for appellee.
Before GRONER, Chief Justice, and MILLER and VINSON, Associate Justices.
MILLER, Associate Justice.
The Patent Office rejected the claims in suit on the ground that they showed no invention over the prior art. Appellant, as assignee of the applicants, Silverman and Kessler, sued under Section 4915, R.S., 35 U.S.C.A. § 63. The lower court found that: "2. The Silverman and Kessler application discloses a process of treating a lubricating oil so as to lower the temperature point at which the oil ceases to flow (`the pour point'), said process consisting in adding to the oil a small amount of a metallic soap of a solid fatty acid, such as aluminum stearate, and an organic stabilizer such as triethanolamine. The bill contains both process and product claims. 3. The patent to Bennett et al. No. 1,806,735, discloses a process of lowering the temperature point at which the oil ceases to flow, in which there is added to the oil aluminum stearate and a high boiling alcohol, such as benzyl alcohol. 4. The articles on Triethanolamine published in Industrial & Engineering Chemistry of January, 1929, and Oil, Paint and Drug Reporter, of August 6, 1928, state the constituents of commercial Triethanolamine and many of its characteristics." The court concluded therefrom that: "1. The disclosure of the Triethanolamine articles is sufficient to suggest the use of triethanolamine as a stabilizer in lieu of the alcohols mentioned in the Bennett et al. patent. 2. It was not invention to use *231 triethanolamine with aluminum stearate in treating a lubricating oil to lower the temperature point at which such oil ceases to flow. 3. Plaintiff is not entitled to a patent on the Silverman and Kessler application containing the claims in suit which are claims 4, 10, 11, 12, 13, 15, 19 and 20 of that application. 4. The Bill of Complaint should be dismissed." This appeal is from the decree dismissing the bill. Claims 4, 13 and 20 are typical of the eight here involved and are set out in the margin.[1]
On oral argument in this court, the Commissioner conceded that appellant's claims have both novelty and utility. The sole remaining question is whether there was invention. Appellant's argument in support of invention proceeds as follows: In spite of the best methods of refining, lubricating oil produced from paraffin-base petroleum contains a residuum of wax; this wax causes the lubricating oil to freeze at low temperatures; the freezing results from the crystallizing of the wax into a web-like or honeycomb form, thus solidifying the whole body of the oil; when the oil in the crankcase of an automobile becomes solidified and the motor is started, free lubrication is delayed, with resulting injury or destruction of the engine; much experimental work has been done and a number of methods have been used to overcome this difficulty; partial success had been achieved by adding gasoline or kerosene to the oil, but while these volatile dilutents produced a low "pour point" and temporarily prevented freezing, they evaporated when the oil became hot and also thinned the oil and reduced viscosity; the applicants in the present case, after years of research and experimentation, worked out a solution for the problem which consisted of adding to the oil a small percentage of metallic soap composed of a solid fatty acid, such as aluminum stearate, and a small percentage of triethanolamine; the metallic soap has the effect of insulating the wax crystals, thus preventing the webbing or honeycombing which would otherwise occur; the triethanolamine stabilizes this insulation of the wax crystals and prevents reversion to the objectionable crystallized form; tests showed that the oil so treated maintains stable fluidity at low temperatures for about four weeks.
The claim of invention thus described is based on the theory of chance discovery. This is illustrated by the following questions and answers on cross-examination:
"Q. You just picked up any old chemical you could find and tried it. A. Yes, sir. We tried various sorts of things that were entirely different from triethanolamine.
"Q. And this being a new one, you just tried it? A. That is it, exactly. We get from time to time new things which come into the market. I have in my laboratory any number of things, and if we see them listed we order a sample and there it stands, and some day we think we will try this; and that is very common procedure in many laboratories. When we are in a pinch we will try anything."
While it is true that invention may be the result of accident, and one seeking a patent thereon need not understand or be able to state the scientific principles underlying his claim,[2] nevertheless, he is charged with knowledge of the state of the art and hence, even if he had no actual notice thereof and therefore was experimenting blindly, he cannot overcome the negation of invention which results from actual disclosure by the prior art.[3] It is necessary, therefore, for us to examine the prior art of lubricating oil production.
*232 The Patent Office, in holding appellant's product and process devoid of invention, relied upon the following references: Bennett, No. 1,806,735, May 26, 1931; Hodson, No. 1,982,662, December 4, 1934; and an article entitled "Triethanolamine" appearing in "Emulsions" published by the Carbide and Carbon Chemicals Corporation in 1930. The Commissioner concedes that the latter two were too late to affect the claims in suit, and on this appeal relies solely upon the patent to Bennett and an advertisement published in August, 1928, by the Carbide and Carbon Chemicals Corporation entitled "Triethanolamine." He insists, however, that, in the light of the disclosures there made, Silverman and Kessler were "simply doing that which the art taught."
Appellant contends that the Bennett patent is not part of the prior art because it was not made public until after the filing of the application in the present case, and that in any event it cannot be combined with other references to defeat a claim of invention. This contention is answered adversely in our recent opinion in Minnesota Mining and Manufacturing Co. v. Coe, 69 App.D.C. 256, 100 F.2d 429, and in cases therein cited.
The Bennett patent described a process remarkably similar to that described by the applicants herein. In fact, in only one essential respect do they differ; i. e., the Bennett patent describes as stabilizers "high boiling alcohols and esters such as benzyl alcohol, cyclohexanol, glycerine and benzyl acetate," and later specifies that "any organic stabilizer * * * may be used." Applicants, on the other hand, specify  in two of their claims  "an organic stabilizer containing an amino [NH2] group"; and, in the others, they specify "triethanolamine."
The important and decisive question in the case, therefore, is whether the substitution of "an organic stabilizer containing an amino group," or "triethanolamine," in place of "any organic stabilizer" constitutes invention. In this connection it should be noted that triethanolamine is itself an organic stabilizer. Although it had never been employed as a stabilizer for low pour-point lubricating oils prior to its use by Silverman and Kessler, its use as a substitute for alcohol was not new to the art. The advertisement by the Carbide and Carbon Chemicals Corporation appearing in 1928 disclosed that triethanolamine reacts "both as an organic base [alkaline] and as an alcohol"; that it combines "freely with fatty acids such as oleic and stearic to form soaps that are freely soluble not only in water but also in gasoline and oil"; and that it "can replace, in whole or in part, various organic alcohols such as phenol, or glycerine in the manufacture of synthetic resins."
Applicant Silverman testified that he made samples according to Bennett and upon testing them got the following results:
The pour point of the oil before applying Bennett's procedure was plus 30° F. In the case of the sample made with benzyl alcohol according to Bennett, "after I had made the sample and tested it in the cold test bath, I found it was fluid down to  5° F. But, after 17 days in the ice box it had reverted to plus 15."
In the case of the sample made with glycerine according to Bennett, it had shown fluidity down to 0° F., but after 17 days ceased to flow at plus 25° F.
In the case of the sample made with cyclo-hexanol according to Bennett, "it was fluid down to zero when I first made it, but after ten days in the ice box test it ceased to flow at plus 25° F."
In the case of the sample made with the benzyl acetate, according to Bennett, "while it showed fluid down to zero when I first made it, after a period of ten days in the ice box it would not longer flow below 30° F."
In other words, adopting the applicant's testimony without more, we see that the Bennett process produced fluidity at low temperatures, stabilized for periods of from ten days to seventeen days according to the organic stabilizer used; while the Silverman process  using triethanolamine as the organic stabilizer  produced fluidity at low temperatures, stabilized for a period of twenty-eight days.
It seems apparent, therefore, that Bennett's step from the use of volatile dilutents, such as gasoline and kerosene, was a much more difficult step than Silverman's and that the latter was indeed an easy one,[4] clearly indicated by the revelations contained in Bennett, together with the description of triethanolamine contained in the publication referred to by the Commissioner. "Especially *233 in chemical and electrical experiments happy solutions may be reached by testing out variants reached merely by permutations of old elements. Possibly the patent law should protect such industrial achievements, but it does not; the work of the well-equipped laboratory which by trial and error checks off a series of formulas, may be the proper path of industrial advance, as the Germans found it to be before the Great War; but it does not demand what we call `invention.'"[5]
Although genius is not required,[6] the conception sought to be protected by patent must be the result of more than "mere exercise of the skill of the calling and not one plainly indicated by the prior art."[7] Thus, while it may be conceded that what Silverman and Kessler have accomplished is new and useful, we are of the opinion that it does not rise to the dignity of invention.[8] "An invention is a new display of ingenuity beyond the compass of the routineer, * * *"[9] and a mere "showing of great industry in experimental research is not in itself sufficient to constitute invention, when the product thereof differs from those of the prior art only in degree and the result  no matter how useful it may be  is merely one step forward in a gradual process of experimentation."[10] In the present case it is apparent that Silverman and Kessler, with the data relative to the chemistry of triethanolamine before them, did no more than could have been done by the ordinary chemist, skilled in the art, working toward the same end under like conditions.[11] The substitution of triethanolamine for other organic stabilizers in the claimed invention was an "obvious adaptation" of materials plainly foreshadowed by the teachings of the prior art, and required for its accomplishment "only search or research."[12] Mathieson Alkali Works, Inc. v. Coe, 69 App.D.C. 210, 99 F. 2d 443, upon which appellant relies, presents a clearly distinguishable situation.
And, finally, even conceding, as appellant contends, that its product and process satisfied a need in the industry and was a commercial success, resort may not be had to these facts to prove invention where lack of invention is not in doubt. As was said by the Supreme Court in Altoona Publix Theatres, Inc. v. American Tri-Ergon Corp., 294 U.S. 477, 488, 55 S.Ct. 455, 459, 79 L.Ed. 1005: "* * * want of invention would have to be far more doubtful than it is to be aided by evidence of commercial success, indicating that it brought realization of a long-felt want."[13]
Affirmed.
NOTES
[1]  "4. A lubricating composition comprising not less than approximately 99% mineral oil, and oil soluble metal soap of a solid fatty acid, and an organic stabilizer containing an amino group.

"13. A lubricating oil consisting of about 99% paraffin-base oil, less than 1% aluminum stearate and triethanolamine and having the permanent property of fluidity when its temperature is reduced to zero degrees Fahrenheit.
"20. The method of permanently modifying the fluid characteristics of paraffinbase mineral oil at temperature around zero degrees Fahrenheit, which consists in intimately mixing therewith less than 1% of aluminum stearate and a lesser amount of triethanolamine."
[2]  Diamond Rubber Co. v. Consolidated Rubber Tire Co., 220 U.S. 428, 435, 436, 31 S.Ct. 444, 55 L.Ed. 527; A. O. Smith Corp. v. Lincoln Electric Co., 6 Cir., 82 F.2d 226, 227.
[3]  Derby v. Thompson, 146 U.S. 476, 481, 13 S.Ct. 181, 36 L.Ed. 1051; Mast, Foos & Co. v. Stover Mfg. Co., 177 U. S. 485, 493, 20 S.Ct. 708, 44 L.Ed. 856; Pennington v. National Supply Co., 5 Cir., 95 F.2d 291, 295; Ruben Condenser Co. v. Copeland Refrigeration Corp., 2 Cir., 85 F.2d 537, 541, certiorari denied, 300 U.S. 665, 57 S.Ct. 508, 81 L.Ed. 873.
[4]  Kirsch Mfg. Co. v. Gould Mersereau Co., Inc., 2 Cir., 6 F.2d 793, 794.
[5]  Ruben Condenser Co. v. Copeland Refrigeration Corp., 2 Cir., 85 F.2d 537, 541, certiorari denied, 300 U.S. 665, 57 S.Ct. 508, 81 L.Ed. 873. See also, Standard Oil Development Co. v. James B. Berry Sons Co., Inc., 3 Cir., 92 F.2d 386, 387.
[6]  United Chromium, Inc. v. International Silver Co., 2 Cir., 60 F.2d 913, 917, certiorari denied, 288 U.S. 600, 53 S.Ct. 319, 77 L.Ed. 976.
[7]  Electric Cable Joint Co. v. Brooklyn Edison Co., Inc., 292 U.S. 69, 79, 54 S. Ct. 586, 78 L.Ed. 1131; Altoona Publix Theatres, Inc. v. American Tri-Ergon Corp., 294 U.S. 477, 486, 55 S.Ct. 455, 79 L.Ed. 1005; Atlantic Works v. Brady, 107 U.S. 192, 200, 2 S.Ct. 225, 27 L.Ed. 438.
[8]  Berlin Mills Co. v. Procter & Gamble Co., 254 U.S. 156, 166, 41 S.Ct. 75, 65 L.Ed. 196.
[9]  Kirsch Mfg. Co. v. Gould Mersereau Co., Inc., 2 Cir., 6 F.2d 793, 794; Murphy v. Coe, 69 App.D.C. 225, 99 F. 2d 994.
[10]  Minnesota Mining & Mfg. Co. v. Coe, 69 App.D.C. 217, 99 F.2d 986, 989. See also, Railroad Supply Co. v. Elyria Iron & Steel Co., 244 U.S. 285, 37 S.Ct. 502, 61 L.Ed. 1136.
[11]  Donner v. Sheer Pharmacal Corp., 8 Cir., 64 F.2d 217, 221, certiorari denied, 290 U.S. 658, 54 S.Ct. 73, 78 L. Ed. 570; Mills v. Coe, 69 App.D.C. 223, 99 F.2d 992.
[12]  Pick v. Coe, 69 App.D.C. 216, 99 F.2d 985, 986; Textile Machine Works v. Louis Hirsch Textile Machines, Inc., 302 U.S. 490, 498, 58 S.Ct. 291, 82 L.Ed. 382.

Mershon v. Sprague Specialties Co., 1 Cir., 92 F.2d 313, 318, certiorari denied, 304 U.S. 561, 58 S.Ct. 943, 82 L.Ed. 1528: "Generally speaking, the mere substitution of one material for another will not amount to invention even when the new material is more effective." See Goldman v. Polan, 4 Cir., 93 F.2d 797, 799.
[13]  DeForest Radio Co. v. General Electric Co., 283 U.S. 664, 685, 51 S.Ct. 563, 75 L.Ed. 1339; Premier Machine Co. v. Freeman, 1 Cir., 84 F.2d 425, 428, certiorari denied, 299 U.S. 580, 57 S.Ct. 45, 81 L.Ed. 428; Kaser Process Pie Co. v. Pie Bakeries of America, Inc., N.D.Ill., 50 F.2d 414.


754 F.2d 376
U.S.v.Black
84-3764, 84-3788
United States Court of Appeals,Sixth Circuit.
12/5/84
N.D.Ohio
APPEALS DISMISSED


976 So.2d 96 (2008)
Roy KAHN, Appellant,
v.
The STATE of Florida, Appellee.
No. 3D08-159.
District Court of Appeal of Florida, Third District.
February 27, 2008.
Rehearing Denied March 20, 2008.
Roy Kahn, in proper person.
Bill McCollum, Attorney General, for appellee.
Before WELLS, ROTHENBERG, and SALTER, JJ.
PER CURIAM.
This is an appeal of an order denying a motion for post conviction relief under Florida Rule of Criminal Procedure 3.850. The motion was filed August 10, 2007, and denied by the trial court September 29, 2007. Because we find the argument made in that motion to be without merit, we affirm the trial court's order denying Rule 3.850 relief.


UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                            HERRING, BURTON, and WOLFE
                               Appellate Military Judges

                             UNITED STATES, Appellee
                                         v.
                       Staff Sergeant JEFFREY L. MCBRIDE
                           United States Army, Appellant

                                   ARMY 20130875

              Headquarters, Joint Readiness Training Center and Fort Polk
               Randall L. Fluke and Wade N. Faulkner, Military Judges
                  Colonel Samuel A. Schubert, Staff Judge Advocate

For Appellant: Colonel Kevin Boyle, JA; Major Amy E. Nieman, JA; Captain
Payum Doroodian, JA; (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Major A.G. Courie III, JA; Captain
John Gardella, JA (on brief).

                                  30 November 2015
                               ---------------------------------
                               SUMMARY DISPOSITION
                               ---------------------------------

Per Curiam:

       A military judge sitting as a general court-martial, convicted appellant,
contrary to his pleas, of failure to obey a lawful order, damage to property of the
United States other than military property, two specifications of aggravated sexual
contact with a child, three specifications of abusive sexual contact with a child, five
specifications of aggravated sexual abuse of a child, and two specifications of
assault consummated by a battery in violation of Articles 92, 109, 120, and 128,
Uniform Code of Military Justice, 10 U.S.C. §§ 892, 909, 920, 928 (2006, 2012)
[hereinafter UCMJ]. The military judge sentenced appellant to a dishonorable
discharge, confinement for sixteen years, and a reduction to the grade of E-1. The
convening authority approved the sentence as adjudged.

      This case is before us pursuant to Article 66, UCMJ. Appellant raises three
assignments of error, one of which merits discussion and relief. The matters
personally raised by appellant pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982), are without merit.
MCBRIDE—ARMY 20130875

                                  BACKGROUND

       Appellant’s court-martial concluded on 9 October 2013. Defense counsel
received the record of trial for review on 12 February 2014 and completed his review
on 18 February 2014. The military judge authenticated the record of trial on 6
March 2014. 1 The staff judge advocate signed his recommendation (SJAR) on 18
March 2014 and served it in conjunction with the authenticated record of trial on
appellant’s defense counsel on 26 March 2014. Appellant received the authenticated
record of trial and SJAR on 11 April 2014. The government received post-trial
matters on behalf of the appellant on 16 May 2014. The staff judge advocate signed
the addendum on 11 June 2014 and the convening authority took action the same
day. This court received the record of trial on 30 July 2014.

                              LAW AND DISCUSSION

       In United States v. Moreno, our superior court established timeliness
standards for various stages of the post-trial and appellate process. 63 M.J. 129,
142-43 (C.A.A.F. 2006). The Moreno standard applicable in this case is that
the record of trial should be docketed with this court within thirty days of the
convening authority’s action. 2 Id. Failure to satisfy this standard creates a
“presumption of unreasonable delay,” prompting this court to apply and balance the
four factors set out in Barker v. Wingo, 407 U.S. 514, 530 (1972), in order to
determine whether appellant’s due process rights were violated by the delays. See
Moreno, 63 M.J. at 136.

       Taking forty-nine days to docket appellant’s case at this court is
presumptively unreasonable as it violates the Moreno standard of thirty days. Id. at
142. In the face of this lengthy delay, our next step is to apply and balance the four
factors set out in Barker, in order to determine whether appellant’s due process
rights were violated. Id. at 135-36.

       The lack of any delay on the part of the defense for docketing appellant’s case
with this court rests the dilatory post-trial processing at the feet of the government.
See Rule for Courts-Martial 1106(f)(5) and United States v. Garman, 59 M.J. 677
(Army Ct. Crim. App. 2003). This facially unreasonable delay triggers our review of

1
  The first Military Judge completed authenticated the Record of Trial on 19
February 2014; however the second Military Judge did not authenticate the record of
trial until 6 March 2014.

2
 Two other standards—initial action by the convening authority after the court-
martial and timeliness of appellate review before this court—are not relevant in
appellant’s case. Moreno, 63 M.J. at 142-43.

                                           2
MCBRIDE—ARMY 20130875

the remaining Moreno factors: reasons for the delay; timely assertion of the right to
speedy post-trial review; and prejudice. Moreno, 63 M.J. at 135-36.

       There is no specific explanation provided by the government for the delay in
this court receiving the case. The lack of justification for the delay weighs in favor
of appellant. The third Moreno factor weighs in favor of the government as the
appellant did not assert his right to speedy post-trial processing until this appeal.
Turning to the fourth Moreno factor, appellant fails to demonstrate prejudice.
Although we find no due process violation after consideration of the Moreno factors,
we review the appropriateness of the sentence in light of the dilatory post-trial
processing. UCMJ art. 66(c). See Moreno, 63 M.J. at 138-42; United States v.
Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006); United States v. Tardif, 57 M.J. 219, 224
(C.A.A.F. 2002). After consideration of the entire record, we conclude appellant’s
case warrants relief in the form of a thirty day reduction in confinement under
Article 66(c), UCMJ, for the unreasonable post-trial delay. See Tardif, 57 M.J. at
224.

                                   CONCLUSION

       The findings of guilty are AFFIRMED. After considering the entire record,
we AFFIRM only so much of the sentence as provides for a dishonorable discharge,
confinement for fifteen years and 11 months, and reduction to the grade of E-1. All
rights, privileges, and property, of which appellant has been deprived by virtue of
that portion of the sentence set aside by this decision are ordered restored. See
UCMJ arts. 58a(b), 58b(c), and 75(a).

                                       FOR
                                     FOR   THE
                                         THE   COURT:
                                             COURT:

                                     JOHN P. TAITT
                                       JOHN
                                     Deputy   P. TAITT
                                            Clerk of Court
                                       Deputy Clerk of Court

                                          3


289 N.W.2d 535 (1980)
205 Neb. 682
FRATERNAL ORDER OF POLICE, LODGE NO. 12, Appellee and Cross-Appellant,
v.
COUNTY OF ADAMS, Nebraska, a political subdivision, Appellant and Cross-Appellee.
No. 42549.
Supreme Court of Nebraska.
March 11, 1980.
*536 Nelson & Harding, A. Stevenson Bogue, and William A. Harding, Lincoln, for appellant and cross-appellee.
Les Seiler, Hastings, for appellee and cross-appellant.
Heard before KRIVOSHA, C. J., BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.
HASTINGS, Justice.
The County of Adams appeals from an order of the Commission of Industrial Relations (CIR) ordering it to pay uniformed employees of the Adams County sheriff's department a monthly clothing allowance of $25 and increasing by $39 per month payments to the family medical insurance coverage of department employees within that program. The appellee in this action is the Fraternal Order of Police, Lodge No. 12 (Lodge), the bargaining agent for the employees involved. It cross-appeals from that portion of the CIR's order denying its request to raise certain wages, and to institute overtime and holiday pay, vacation provisions, sick leave, and tenure. However, the claimed errors are in no way discussed in its brief and in accordance with our rules will not be considered.
A petition was filed by the Lodge on August 22, 1978, alleging that an industrial dispute existed by reason of the refusal of the County to bargain concerning the items set forth above. A hearing was had and evidence consisted of testimony of Greg McGee, acting sheriff, Billy Simmons, a deputy sheriff, and Hugh Catherwood, a consultant in the field of personnel relations, as well as considerable statistical data.
The County's nine assigned errors may be consolidated into two general categories rejection or acceptance of certain items of evidence, and awarding financial benefits to the employees, claiming that the total compensation previously received was comparable to the prevalent.
At the outset we dispose of the Lodge's contention that the appeal be dismissed because of the failure of the County to file a motion for a new trial. This is disposed of by our holding in Plattsmouth Pol. Dept. Coll. Barg. Comm. v. City of Plattsmouth, 205 Neb. 567, 288 N.W.2d 729 (1980), that a party appealing from an order of the Commission of Industrial Relations is not required to file a motion for a new trial before the commission as a prerequisite to an appeal. There is no merit to the Lodge's contention.
Beyond that preliminary statement, we will state that in reviewing the findings and orders of the Commission of Industrial Relations we are restricted to considering whether the order of the commission is supported by substantial evidence justifying the same, whether the commission acted within the scope of its statutory authority, and whether its action was arbitrary, capricious, or unreasonable. We affirm the action of the CIR.
The witness McGee testified as to the general duties of the various categories of employees and the average amount of overtime put in by each category.
Deputy Simmons testified that the average cost to him for the cleaning of his uniforms amounted to $29.75 per month and in addition to that he had to provide his own shoes and weapons. Also, having served in the past as a member of the Hastings police department, he described the duties of the various categories of sheriffs with corresponding police rankings so that wage comparisons could be made.
Both parties introduced statistical data which consisted of an array comprised of Hall, Dodge, Madison, Buffalo, Platte, Dawson, Seward, and York counties. Four of these counties were larger and four smaller than Adams County. The mean population of the eight counties was 27,963, the median 29,400, and the population of Adams County was 29,200. In addition, the Lodge offered evidence of pay rates and benefits paid by Lincoln County which, although *537 objected to by the County because it had a population of 34,700, was received by the CIR. The county offered as evidence, by way of comparative wages and benefits paid by the Hastings police department as to secretary-matrons, the wages paid by selected private employers to secretaries and clerk typists. This evidence was all rejected by the CIR for the reason that as to both the Hastings police department and private sector employees, it did not establish a similarity of work skills under the same or similar working conditions. In selecting employment units in reasonably similar labor markets for the purpose of comparison as to wage rates and other benefits, the question is whether, as a matter of fact, the units selected for comparison are sufficiently similar and have enough like characteristics or qualities to make comparison appropriate. Omaha Assn. of Firefighters v. City of Omaha, 194 Neb. 436, 231 N.W.2d 710 (1975). The determinations made here, both as to acceptance and rejection of claimed comparables, were within the field of expertise of the Commission of Industrial Relations, were made after a consideration and comparison of all the evidence, and the methods of selection and comparison were in accord with the requirements of section 48-818, R.R.S.1943. The CIR's action in accepting and rejecting evidence was within the scope of its statutory authority and was neither arbitrary, capricious, nor unreasonable.
After reviewing in some detail the various wages paid Adams County employees vis-a-vis those furnished the employees in the other nine counties, the CIR then made specific findings after adjusting all wages to the same length work week. It found that the Lodge had not sustained its burden that the wages paid were too low and the County had likewise failed in its effort to demonstrate that they were too high. Following is a tabulation of those findings, with the Adams County average pay for each occupation in parenthesis following the average minimum and maximum in the nine-county array: Jailer/Dispatcher, $696.25/$764 ($763.60); Deputy I, $749.11/$892.82 ($837.50); Deputy II, $876.57/$895.50* ($915.66); Secretary/Matron, $539.77/$678.33 ($624).** [Note: *Only two counties reported a Deputy II maximum. **Adjusted from $546 to a 40-hour week.]
Additionally, the CIR found that compensatory time, rather than time and one-half, was the prevalent practice and which neither party desired; that there is no prevalent practice of paying double time for holidays; that the vacation benefits were comparable to the prevalent practice; that sick leave accumulation is similar to that of the array; and that the evidence does not support the presence of "tenure" for employees in any part of the array. As to medical insurance, although the County paid slightly more, $1 to $5 for employee coverage, the amount allocated to family benefits was approximately $3 as compared to from $28 to $72 in the array. Uniform allowances ranged from $15 to $40 in the array as opposed to nothing provided by the County. Accordingly, the CIR ordered the County to pay a clothing allowance of $25 per month and family medical insurance coverage benefits of $42.11 per month, up $39 from the previous $3.11.
It was implicit in the order of the CIR, and as a matter of fact specifically so found, that all wages and benefits paid by the County were comparable to the prevalent except for the insurance benefits and clothing allowances. We hold that these findings and the order predicated on the same were supported by substantial evidence justifying the same, were based on actions of the CIR well within the scope of its statutory authority, and were neither arbitrary, capricious, nor unreasonable.
Accordingly, we affirm the order of the Commission of Industrial Relations.
AFFIRMED.


68 F.3d 471
U.S.v.Strmiska*
NO. 95-10224
United States Court of Appeals,
Fifth Circuit.
Sept 25, 1995
Appeal From:  N.D.Tex., No. 2:94-CR-42-J

1
DISMISSED.

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


      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

                                     NO. 03-13-00125-CV

                      Federal National Mortgage Association, Appellant

                                                v.

        Gerald R. Haddox and Sharon Haddox, and All Other Occupants, Appellees

            FROM THE COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY
       NO. C-1-CV-12-009316, HONORABLE J. DAVID PHILLIPS, JUDGE PRESIDING

                           MEMORANDUM OPINION

               Appellant Federal National Mortgage Association has filed an unopposed motion

to dismiss stating that it no longer wishes to pursue this appeal. We grant the motion and dismiss

the appeal. See Tex. R. App. P. 42.1(a)(1).

                                              _____________________________________________

                                              J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Pemberton and Field

Dismissed on Appellant’s Motion

Filed: July 2, 2013


                                                                              FILED
                            NOT FOR PUBLICATION                               OCT 25 2013

                                                                           MOLLY C. DWYER, CLERK
                   UNITED STATES COURT OF APPEALS                           U.S. COURT OF APPEALS

                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 12-10365

              Plaintiff - Appellee,              D.C. No. 1:12-cr-00137-DAE-1

  v.
                                                 MEMORANDUM*
JOHN ROBERT HARDY,

              Defendant - Appellant.

                    Appeal from the United States District Court
                             for the District of Hawaii
                     David A. Ezra, District Judge, Presiding

                      Argued and Submitted October 8, 2013
                               Honolulu, Hawaii

Before:       KOZINSKI, Chief Judge, FISHER and WATFORD, Circuit Judges.

       1. The district court didn’t clearly err when it found Hardy’s consent to the

officers’ entrance into the room to be voluntary. See United States v. Washington,

490 F.3d 765, 769 (9th Cir. 2007). Hardy wasn’t in custody. There’s no evidence

the officers had their guns drawn or told him compliance would be compelled. See

          *
          This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                              Page 2
United States v. Kim, 25 F.3d 1426, 1432 (9th Cir. 1994). And, although he

wasn’t told that he didn’t have to consent, he knew he could say no: He twice

refused to let the officers in the hotel room and withheld consent to search the

backpack. See id.

      Because Hardy consented to the entry into the hotel room, we need not

address whether Hardy had a reasonable expectation of privacy in it.

      2. The district court didn’t clearly err in finding that Hardy abandoned the

backpack by denying ownership. See United States v. Nordling, 804 F.2d 1466,

1469 (9th Cir. 1986).

      AFFIRMED.


Opinion filed August 13, 2020

                                      In The

        Eleventh Court of Appeals
                                   __________

                                No. 11-20-00057-CV
                                    __________

               IN THE INTEREST OF C.M.A.S., A CHILD

                     On Appeal from the 318th District Court
                             Midland County, Texas
                        Trial Court Cause No. FM 65,556

                      MEMORAND UM OPI NI ON
      This is an appeal from a final order in which the trial court terminated the
parental rights of C.M.A.S.’s mother and father.       See TEX. FAM. CODE ANN.
§ 161.001 (West Supp. 2019). The father filed a notice of appeal. We affirm.
      Appellant’s court-appointed counsel has filed a motion to withdraw and a
supporting brief in which he professionally and conscientiously examines the record
and applicable law and concludes that the appeal presents no issues of arguable merit
and is therefore frivolous. The brief meets the requirements of Anders v. California,
386 U.S. 738 (1967), by presenting a professional evaluation of the record
demonstrating why there are no arguable grounds to be advanced. See In re
Schulman, 252 S.W.3d 403, 406–08 (Tex. Crim. App. 2008); High v. State, 573
S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978). In light of a holding by the
Texas Supreme Court, however, an Anders motion to withdraw “may be premature”
if filed in the court of appeals under the circumstances presented in this case. See In
re P.M., 520 S.W.3d 24, 27 (Tex. 2016). The court in P.M. stated that “appointed
counsel’s obligations can be satisfied by filing a petition for review that satisfies the
standards for an Anders brief.” Id. at 27–28.
        Appellant’s counsel provided Appellant with a copy of the brief and the
motion to withdraw. In compliance with Kelly v. State, 436 S.W.3d 313, 318–20
(Tex. Crim. App. 2014), counsel provided Appellant with a copy of the record in this
cause and informed Appellant of his right to review the record and file a pro se
response to counsel’s brief. We conclude that Appellant’s counsel has satisfied his
duties under Anders, Schulman, and Kelly.
        We note that Appellant has filed a pro se response to counsel’s Anders brief
and motion to withdraw. In his pro se response, Appellant questions the assistance
that he received from his appointed attorneys. Following the procedures outlined in
Anders and Schulman, we have independently reviewed the record in this cause, and
we agree that the appeal is frivolous. However, in light of P.M., we must deny the
motion to withdraw that was filed by Appellant’s court-appointed counsel. See P.M.,
520 S.W.3d at 27.
        Accordingly, we deny counsel’s motion to withdraw, and we affirm the trial
court’s order of termination.

                                                                   PER CURIAM
August 13, 2020
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1
Willson, J., not participating.

        1
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
                                                      2


J-S02021-20

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

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                   Appellee              :
                                         :
              v.                         :
                                         :
 VICTOR D. STEELE                        :
                                         :
                   Appellant             :        No. 936 MDA 2019

       Appeal from the Judgment of Sentence Entered May 23, 2019
            In the Court of Common Pleas of Dauphin County
          Criminal Division at No(s): CP-22-CR-0002119-2018

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                   Appellee              :
                                         :
              v.                         :
                                         :
 VICTOR D. STEELE                        :
                                         :
                   Appellant             :        No. 937 MDA 2019

       Appeal from the Judgment of Sentence Entered May 23, 2019
            In the Court of Common Pleas of Dauphin County
          Criminal Division at No(s): CP-22-CR-0004004-2018

BEFORE: BENDER, P.J.E., KING, J., and MUSMANNO, J.

MEMORANDUM BY KING, J.:                          FILED JANUARY 22, 2020

      Appellant, Victor D. Steele, appeals from the judgment of sentence

entered in the Dauphin County Court of Common Pleas, following his open

guilty pleas to three counts of robbery, two counts of simple assault, and one

count each of terroristic threats, disorderly conduct, and possession of drug

paraphernalia (see 18 Pa.C.S.A. §§ 3701(a)(1)(ii), (iv), (v); 2701(a)(1), (3);
J-S02021-20

2706(a)(1); 5503(a)(1); 35 P.S. § 780-113(a)(32), respectively). We affirm.

      The relevant facts and procedural history of this case are as follows. In

April 2018, Appellant committed several robberies within twenty-four hours in

Harrisburg.   The Commonwealth charged Appellant with multiple counts of

robbery, simple assault, and related offenses at docket No. CP-22-CR-

0002119-2018 (“docket 2119-2018”) and docket No. CP-22-CR-0004004-

2018 (“docket 4004-2018”).      On March 12, 2019, Appellant entered open

guilty pleas at both docket numbers.

      With the benefit of a pre-sentence investigation (“PSI”) report, the court

conducted Appellant’s sentencing hearing on May 23, 2019. At the conclusion

of the hearing, the court sentenced Appellant to eight (8) to sixteen (16)

years’ imprisonment, plus a consecutive term of five (5) years of state

probation, at docket 2119-2018. At docket 4004-2018, the court sentenced

Appellant to two (2) to four (4) years’ imprisonment, to run consecutive to

the sentence at docket 2119-2018. In sum, the court imposed an aggregate

sentence of ten (10) to twenty (20) years’ imprisonment, followed by five (5)

years’ state probation.

      Appellant timely filed a post-sentence motion on May 31, 2019, claiming

the court imposed an “unduly harsh” sentence “without considering

[Appellant’s] history and characteristics.”     (Post-Sentence Motion, filed

5/31/19, at 1). On June 3, 2019, the court denied post-sentence relief.

      On June 7, 2019, Appellant timely filed separate notices of appeal at

                                     -2-
J-S02021-20

each underlying docket.            Upon application by Appellant, this Court

consolidated the appeals. On June 11, 2019, the court ordered Appellant to

file a concise statement of errors complained of on appeal, pursuant to

Pa.R.A.P. 1925(b). Appellant timely filed a Rule 1925(b) statement on June

18, 2019.

       Appellant raises one issue for our review:

          WHETHER THE TRIAL COURT COMMITTED AN ABUSE OF
          DISCRETION WHEN IT SENTENCED [APPELLANT] TO AN
          AGGREGATE PERIOD OF INCARCERATION OF NOT LESS
          THAN TEN (10) YEARS TO NO MORE THAN TWENTY (20)
          YEARS AT A STATE CORRECTIONAL INSTITUTE?

(Appellant’s Brief at 4).

       Appellant argues the court imposed a sentence that is inconsistent with

the protection of the public, the gravity of the offenses, and Appellant’s

rehabilitative needs. Appellant asserts the sentencing court failed to consider

his personal history and circumstances, including his drug use at the time of

the offenses.     Appellant insists the court imposed a manifestly excessive

sentence that is too severe a punishment. As presented, Appellant’s challenge

implicates the discretionary aspects of his sentence.1 See Commonwealth

____________________________________________

1  “[W]hile a guilty plea which includes sentence negotiation ordinarily
precludes a defendant from contesting the validity of his…sentence other than
to argue that the sentence is illegal or that the sentencing court did not have
jurisdiction, open plea agreements are an exception in which a defendant will
not be precluded from appealing the discretionary aspects of the sentence.”
Commonwealth v. Tirado, 870 A.2d 362, 365 n.5 (Pa.Super. 2005). “An
‘open’ plea agreement is one in which there is no negotiated sentence.” Id.

                                           -3-
J-S02021-20

v. DiClaudio, 210 A.3d 1070, 1074 (Pa.Super. 2019) (stating claim that

sentence is manifestly excessive and not tailored to appellant’s rehabilitative

needs challenges discretionary aspects of sentencing).

       Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d 910,

912 (Pa.Super. 2000).          Prior to reaching the merits of a discretionary

sentencing issue:

          [W]e conduct a four-part analysis to determine: (1) whether
          appellant has filed a timely notice of appeal, see Pa.R.A.P.
          902 and 903; (2) whether the issue was properly preserved
          at sentencing or in a motion to reconsider and modify
          sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s
          brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether
          there is a substantial question that the sentence appealed
          from is not appropriate under the Sentencing Code, 42
          Pa.C.S.A. § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal

denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).

       When appealing the discretionary aspects of a sentence, an appellant

must also invoke the appellate court’s jurisdiction by, inter alia, including in

his brief a separate concise statement demonstrating that there is a

substantial question as to the appropriateness of the sentence under the

Sentencing Code. Commonwealth v. Mouzon, 571 Pa. 419, 425-26, 812

A.2d 617, 621-22 (2002); Pa.R.A.P. 2119(f).        “The determination of what

____________________________________________

at 363 n.1. Here, Appellant’s pleas were “open” as to sentencing, so he can
challenge the discretionary aspects of his sentence.

                                           -4-
J-S02021-20

constitutes a substantial question must be evaluated on a case-by-case basis.”

Commonwealth v. Anderson, 830 A.2d 1013, 1018 (Pa.Super. 2003). A

substantial question exists “only when the appellant advances a colorable

argument that the sentencing judge’s actions were either: (1) inconsistent

with a specific provision of the Sentencing Code; or (2) contrary to the

fundamental norms which underlie the sentencing process.” Sierra, supra

at 913 (quoting Commonwealth v. Brown, 741 A.2d 726, 735 (Pa.Super.

1999) (en banc), appeal denied, 567 Pa. 755, 790 A.2d 1013 (2001)).

      A claim that a sentence is manifestly excessive might raise a substantial

question if the appellant’s Rule 2119(f) statement sufficiently articulates the

manner in which the sentence imposed violates a specific provision of the

Sentencing Code or the norms underlying the sentencing process. Mouzon,

supra at 435, 812 A.2d at 627.       Nevertheless, as a general rule, “[a]n

allegation that a sentencing court ‘failed to consider’ or ‘did not adequately

consider’ certain factors does not raise a substantial question that the

sentence was inappropriate.” Commonwealth v. Cruz-Centeno, 668 A.2d

536, 545 (Pa.Super. 1995), appeal denied, 544 Pa. 653, 676 A.2d 1195

(1996) (quoting Commonwealth v. Urrutia, 653 A.2d 706, 710 (Pa.Super.

1995), appeal denied, 541 Pa. 625, 661 A.2d 873 (1995)).            See also

Commonwealth v. Kane, 10 A.3d 327, 335-36 (Pa.Super. 2010), appeal

denied, 612 Pa. 689, 29 A.3d 796 (2011) (stating bald claim that sentencing

court “failed to consider” factors set forth in 42 Pa.C.S.A. 9721(b) does not

                                     -5-
J-S02021-20

raise substantial question). Moreover, where the sentencing court had the

benefit of a PSI report, the law presumes the court was aware of and weighed

relevant information regarding a defendant’s character along with mitigating

statutory factors. Tirado, supra at 366 n.6.

      Instantly, Appellant’s post-sentence motion did not include his specific

argument that the court imposed a manifestly excessive sentence, so that

particular claim is waived.   See Commonwealth v. Griffin, 65 A.3d 932

(Pa.Super. 2013), appeal denied, 621 Pa. 682, 76 A.3d 538 (2013) (explaining

objections to discretionary aspects of sentence are waived if they are not

raised at sentencing hearing or in timely filed post-sentence motion).

Although Appellant properly preserved his claim that the court did not consider

his personal history and circumstances, Appellant’s claim does not raise a

substantial question. See Cruz-Centeno, supra. Moreover, the court had

the benefit of a PSI report. (See N.T. Sentencing Hearing, 5/23/19, at 2, 7.)

Therefore, we can presume the court considered the relevant information and

mitigating factors.

      Further, the court explained its sentencing decision as follows:

         As is [the sentencing c]ourt’s standard practice, it read the
         [PSI report] which provided the relevant background of
         Appellant. Additionally, at sentencing [the c]ourt allowed
         not only Appellant to speak on his behalf, but also
         Appellant’s wife. Each of their statements were considered
         by [the c]ourt. However, they were simply not enough for
         [the c]ourt to depart so drastically from the sentencing
         guidelines by providing a sentence below the standard
         guideline, as defense counsel requested at sentencing.
         Appellant’s counsel argued that [the] mitigating factors

                                     -6-
J-S02021-20

          were that Appellant suffered from diabetes and that he
          served as a caretaker for his wife, who at the time of
          sentencing suffered from cancer. In arriving at Appellant’s
          sentence, [the c]ourt’s main concern was rendering a
          sentence that was consistent with the protection of the
          public. The fact that Appellant was being sentenced for
          multiple charges of robbery was an immediate concern to
          [the c]ourt because of the concern for public safety.
          Additionally, one of the victims submitted a victim impact
          statement, which detailed how the incident affected her
          everyday life and her inability to lower her defenses for fear
          that this same situation could happen again. In considering
          these factors along with Appellant’s rehabilitative needs, we
          believe we provided the most appropriate sentence given
          the circumstances.

(Trial Court Opinion, filed August 6, 2019, at 3-4) (internal citation omitted).

Here,    the   record   confirms   the   court   properly   balanced   Appellant’s

circumstances with the severity of the offenses and the need to protect the

public. Based upon the foregoing, Appellant is not entitled to relief on his

challenge to the discretionary aspects of sentencing. Accordingly, we affirm.

        Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/22/2020

                                         -7-