41 F.3d 1516NOTICE:  Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties.  See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Bruce Donnell THOMPSON, Petitioner-Appellant,v.Ron CHAMPION;  Attorney General of the State of Oklahoma,Respondents-Appellees.
No. 93-6325.
United States Court of Appeals, Tenth Circuit.
Oct. 20, 1994.

Before TACHA, BRORBY, and EBEL, Circuit Judges.
ORDER AND JUDGMENT*
TACHA, Circuit Judge.

1
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal.  See Fed.R.App.P. 34(a);  10th Cir.R. 34.1.9.  The case is therefore ordered submitted without oral argument.

2
Appellant Bruce Donnell Thompson challenges the denial of his petition for a writ of habeas corpus made pursuant to 28 U.S.C. Sec. 2254.  Appellant pleaded guilty in Oklahoma state court to numerous charges ranging from rape to unauthorized use of an automobile and was sentenced to consecutive sentences of 35 and 40 years imprisonment.  He did not attempt to withdraw his guilty plea after sentencing, nor did he directly appeal his sentence.

3
Appellant subsequently applied to the Oklahoma Court of Criminal Appeals for post-conviction relief alleging ineffective assistance of counsel on several grounds.  The court denied appellant's request, finding his claims procedurally barred under Oklahoma's rule that ineffective assistance claims must be brought on direct appeal.

4
Appellant next brought this petition for habeas corpus in federal district court.  The district court denied the petition on the ground that appellant had procedurally defaulted on his claims in state court.  On appeal, we reversed the district court and remanded the case, directing the court to make further findings.   Thompson v. Champion, 996 F.2d 311 (10th Cir.1993) (unpublished disposition).  Specifically, we ordered the court to determine whether the procedural bar cited by the court was an independent and adequate state ground and, if so, whether appellant had demonstrated cause for his default and resulting prejudice.  Id.

5
On remand, the district court found that there was no adequate state ground for dismissal of appellant's ineffective assistance claim;  as a result, it was not barred.  The district court nevertheless rejected appellant's claims on the merits, and Mr. Thompson now appeals.  We grant appellant leave to proceed in forma pauperis and a certificate of probable cause and consider his claims.

6
In  Coleman v. Thompson, 501 U.S. 722 (1991), the Supreme Court stated:

7
In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.

8
Id. at 750.  Here, the state ground is clearly "independent";  whether appellant's petition is barred depends only on whether the state ground is also "adequate."

9
We agree with the district court's finding that the state procedural ground for dismissing appellant's claim is inadequate to bar review of his ineffectiveness claim.  A state procedural rule is not entitled to respect as an adequate state ground unless it is "strictly or regularly followed."   Hathorn v. Lovorn, 457 U.S. 255, 263 (1982);   Barr v. City of Columbia, 378 U.S. 146, 149 (1964).  And, as the magistrate judge explained, the Oklahoma Court of Criminal Appeals recently limited the requirement that an ineffective assistance claim be brought on direct appeal to cases in which the defendant had different counsel on direct appeal than at trial,  Webb v. State, 835 P.2d 115, 117 (Okla.Crim.App.1992), demonstrating that the rule is still evolving.  Under these circumstances, the rule at issue does not qualify as a "strictly or regularly followed" state practice.  Appellant therefore is not procedurally barred from asserting his ineffectiveness claim in this federal habeas petition.

10
Upon reviewing the record, however, we conclude that appellant's ineffectiveness claim fails on the merits.  For substantially the reasons stated by the magistrate judge in pages 5-12 of his "Supplemental Findings and Recommendation" (attached as an appendix to this opinion), we find that appellant's trial counsel was not constitutionally ineffective as measured by the standards announced in  Strickland v. Washington, 466 U.S. 668 (1984).  The district court's dismissal of appellant's petition for a writ of habeas corpus is therefore AFFIRMED.  The mandate shall issue forthwith.

ATTACHMENT
IN THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF OKLAHOMA

11
Bruce Donnell THOMPSON, Petitioner,

12
v.

13
Ron CHAMPION, Warden, et al., Respondents.

14
Aug. 12, 1993.

No. CIV-92-1970-T

15
SUPPLEMENTAL FINDINGS AND RECOMMENDATION OF UNITED STATES

MAGISTRATE JUDGE

16
By mandate entered on May 19, 1993, the Tenth Circuit Court of Appeals reversed the judgment of United States District Judge Ralph G. Thompson entered herein on January 6, 1993, and remanded the instant petition for writ of habeas corpus to this court.  The circuit court directed that further proceedings be conducted to determine "(1) whether Oklahoma's procedural rule requiring ineffective assistance of counsel claims to be brought on direct appeal is an adequate state ground;  (2) whether Petitioner's third claim of ineffective assistance of counsel, regarding his counsel's failure to advise him about withdrawing his guilty plea or taking a direct appeal, constitutes cause for Petitioner's state procedural default, ... and, if it does, (3) whether Petitioner was thereby prejudiced."   Thompson v. Champion, 1993 WL 170924 (10th Cir.  May 19, 1993), slip op. at 6-7 (footnote omitted) (CCA No. 93-6035).

17
Following the remand, the case was resubmitted pursuant to 28 U.S.C. Sec. 636(b)(1)(B) for the submission of supplemental findings and recommendation for disposition.  In compliance with the court's directive, the parties have filed briefs directed to the issues to be determined in this remand and Respondent has filed the affidavit of Petitioner's trial counsel, Mr. John Thomas Pugh.

18
The Oklahoma Court of Criminal Appeals relied on its procedural bar rule in refusing to review Petitioner's federal claim of ineffective assistance of trial counsel.  This determination may bar federal habeas review of Petitioner's Sixth Amendment claim only if it constitutes an independent and adequate state ground for the decision.   Coleman v. Thompson, 111 S.Ct. 2546, 2554, 2557 (1991).  There is no issue regarding the independence of the Oklahoma Court of Criminal Appeals' decision.  See Thompson v. Champion, supra, slip op. at 6.  Respondent asserts that the state court's reliance on its procedural default rule is also an adequate state ground for the decision.  Respondent contends the Oklahoma Court of Criminal Appeals has consistently applied the rule that the failure to raise grounds in a direct appeal bars a petitioner from raising the same grounds in a subsequent collateral attack.  Respondent does not, however, address with particularity the issue whether the state procedural rule requiring ineffective assistance of counsel claims to be brought on direct appeal is an adequate state ground.

19
The Supreme Court has cautioned that a state procedural rule is not entitled to respect as an adequate and independent state ground unless the procedural rule is "strictly or regularly followed."   Hathorn v. Lovorn, 457 U.S. 255, 262-263 (1982).   Accord, Johnson v. Mississippi, 486 U.S. 578, 587 (1988) (state procedural rule must be "consistently or regularly applied" to warrant application of procedural bar in habeas corpus).  A state procedural rule is consistently applied if it is invoked in a "vast majority" of the cases.   Dugger v. Adams, 489 U.S. 401, 410-412, n. 6 (1989).  In  Ford v. Georgia, 498 U.S. 411 (1991), the Supreme Court reiterated that "only a 'firmly established and regularly followed state practice' may be interposed by a state to prevent subsequent review by this Court of a federal constitutional claim."   Id. at 423-424, quoting  James v. Kentucky, 466 U.S. 341, 348-349 (1984).

20
In  Cartwright v. State, 708 P.2d 592 (Okl.Cr.1985), cert. denied, 474 U.S. 1073 (1986), the Oklahoma Court of Criminal Appeals determined that post-conviction review of a claim of ineffective assistance of trial counsel was not available because the petitioner failed to state a sufficient reason for not raising the issue on direct appeal.  Id. at 594-595.  In  Banks v. State, 810 P.2d 1286 (Okla.Cr.1991), cert. denied, 112 S.Ct. 883 (1992), the appellate court found that a claim of ineffective assistance of trial counsel could have been raised on direct appeal where the petitioner had different counsel on appeal and further found that absent a showing of ineffective assistance of appellate counsel, post-conviction review of the issue was barred by res judicata.  Id. at 1289.  This same rule was applied in  Nguyen v. State, 844 P.2d 176, 179-180 (Okl.Cr.1992), cert. denied, 113 S.Ct. 3006 (1993).

21
In  Webb v. State, 835 P.2d 115 (Okl.Cr.1992), the appellate court clarified its procedural bar rule for ineffective assistance of trial counsel claims.  The court first stated its general procedural bar rule, declaring that "[w]hen the issue of ineffectiveness of counsel could have been raised in a prior proceeding, this court will rely on res judicata and decline to address the claim on its merits."   Id. at 117.  The court then limited the rule to the circumstances before it in which the petitioner "had separate counsel on his direct appeal and on his first application for post-conviction relief in the District Court."   Id.  The appellate court expressly declined to apply the rule to instances in which "an appellant has not had the opportunity for independent, separate and objective representation of counsel through the appeals process."   Id.

22
The petitioners in the Cartwright, Banks, Nguyen and Webb cases had different counsel for their appeals.  The Petitioner herein, however, did not appeal or, needless to say, have separate counsel for an appeal.  Part of his claim of ineffective assistance of counsel is that his trial counsel failed to advise him about withdrawing his guilty plea or taking a direct appeal and failed to contact him during the requisite time period for taking either of these actions.  In light of Webb v. State, supra, it appears that the state's procedural bar rule governing ineffective assistance claims is evolving.1  Accordingly, and in the interest of justice, the court finds federal habeas review on the merits is not prohibited by Petitioner's state procedural default.   Harris v. Reed, 489 U.S. 255, 260 (1989).

23
Moreover, Petitioner challenges, inter alia, tactical decisions by trial counsel in allegedly failing to move to suppress a confession and in-court identification.  In this circuit, the failure to bring an ineffectiveness claim on direct appeal bars the claim in collateral proceedings only in "situations where the defendant is no longer represented by trial counsel and it is evident that resolution of the ineffectiveness claim would not be substantially aided by further development of the record."   Beaulieu v. United States, 930 F.2d 805, 807 (10th Cir.1991).  The Oklahoma Court of Criminal Appeals has allowed the record to be expanded for inclusion of the defense attorney's affidavit when a claim of ineffective assistance of trial counsel is made through different counsel on appeal.   See Crawford v. State, 840 P.2d 627, 641-643 (Okl.Cr.1992);   Stouffer v. State, 817 P.2d 1275, 1277 (Okl.Cr.1991), cert. denied, 112 S.Ct. 1573 (1992).  However, where, as here, the state has applied its procedural bar rule, no record has been developed in the state courts explaining defense counsel's actions.  Consequently, the federal habeas court is left with the unfortunate task of developing the record without benefit of state court findings on factual matters.  In light of this deficiency, Respondent has filed the affidavit of Petitioner's defense counsel, Mr. John Thomas Pugh, in response to the allegations of ineffective assistance.

24
Because Petitioner's procedural default does not bar review of the merits of his ineffectiveness claim, this court need not address the remaining issues of cause and prejudice that were the subject of the remand by the Tenth Circuit Court of Appeals.

25
Petitioner's specific allegations of ineffective assistance include (1) counsel's failure to move to suppress Petitioner's allegedly involuntary confession and an allegedly tainted in-court identification by the victim;  (2) counsel's failure to advise Petitioner that his sentences could run consecutively and that he would be required to serve at least one-third of his sentence before being eligible for parole;  (3) counsel's erroneous advice that Petitioner would be paroled in five years if he pleaded guilty;  (4) counsel's failure to advise him concerning withdrawing his guilty plea or taking a direct appeal;  and (5) counsel's failure to contact him during the ten-day period following sentencing to determine whether he wanted to file a motion to withdraw his guilty plea.

26
The standard governing Petitioner's claim is well established.  Under  Strickland v. Washington, 466 U.S. 668 (1984), a petitioner alleging a denial of his or her Sixth Amendment right to effective assistance of counsel must show both that counsel's performance was deficient and that the deficient performance prejudiced the defense.   Id. at 686-687.  To satisfy the performance component of this standard, "the defendant must show that counsel's representation fell below an objective standard of reasonableness," considering all the circumstances, and indulging "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance;  that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' "   Id. at 688-689, quoting  Michel v. Louisiana, 350 U.S. 91, 101 (1995).   See Hill v. Lockhart, 474 U.S. 52, 58 (1985) (adopting Strickland standard for habeas cases involving Sixth Amendment claims of ineffective assistance of counsel in guilty plea context).

27
Where an error by counsel is found to have been professionally unreasonable at the time it was made, the petitioner must also show that the error prejudiced the defense in order to establish a constitutional deprivation.   Strickland v. Washington, supra at 691-692.  In this regard, "[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding."   Id. at 693.  "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."   Id. at 694.  In the context of a guilty plea, the "defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial."   Hill v. Lockhart, supra at 59.

28
Petitioner alleges that he was arrested for an "unrelated crime," that he was advised of his rights under  Miranda v. Arizona, 384 U.S. 436 (1966), and that he "only consented to talk to the police officer about the crime that he had been arrested for."   However, Petitioner alleges that once the interrogation was completed concerning the crime for which Petitioner was arrested, the police then interrogated Petitioner "about every unsolved crime that they could possibly force on him" even though he "had no knowledge of any other crime."   Petitioner further alleges that he gave the confession only "after many hours and threats (all of which were unrecorded due to the cutting of the tape recorder at the time)," that his confession was therefore involuntary, and defense counsel should have moved to suppress the confession.

29
In response to Petitioner's allegation, Mr. Pugh avers that he recommended Petitioner enter "blind" guilty pleas after he viewed the video statement that Petitioner gave to the police and determined that a motion to suppress the confession was "hopeless" because Petitioner "was advised of his rights more than once and not only freely discussed the crime that [the police] were charging him with, but two more that the police did not even know about but were later able to confirm."   Mr. Pugh also avers that Petitioner never asked to have an attorney present and only thought he should have been allowed to consult with his wife, who is not an attorney, prior to finishing his statement.  Counsel avers that he also determined Petitioner's chances of a not-guilty verdict at a jury trial were hopeless because of the valid confession.  Counsel further avers that he recommended guilty pleas because Petitioner's military record and background, though not spotless, were "good enough to prevent him from getting any life sentences."   Counsel avers that he determined, based on the government's evidence presented at the preliminary hearing, that Petitioner would have gotten at least one, if not more than one, life sentence at a jury trial.  Counsel finally avers that the decisions he made were the best that could have been made at the time given the facts.

30
Mr. Pugh's advice to Petitioner to enter guilty pleas after investigating the strength of the government's case and possible defenses to the charges, is well within the range of competent assistance required of defense attorneys.  Although Mr. Pugh does not specifically respond to Petitioner's allegation concerning an allegedly tainted in-court identification, counsel's failure to move to suppress an in-court identification, where the victim merely was asked to point to the offender in the court room during the preliminary hearing, does not show that counsel's representation "fell below an objective standard of reasonableness."   Strickland v. Washington, supra at 688.  Petitioner has not demonstrated a reasonable probability that a motion to suppress either the confession or the identification would have been successful in gaining an acquittal.

31
Petitioner alleges Mr. Pugh failed to advise him in various respects concerning sentencing, including the possibility of consecutive sentences and the requirement that at least one-third of the sentence must be served before becoming eligible for parole.  Petitioner also alleges that Mr. Pugh misadvised him by telling Petitioner he would be paroled in five years if he pleaded guilty.

32
Petitioner entered "blind" pleas in which there is no recommendation by the state or agreement as to punishment.  When a blind plea is entered, sentencing is entirely in the discretion of the trial judge.   See May v. State, 788 P.2d 408, 410 (Okl.Cr.1990);   Walters v. State, 778 P.2d 483, 484-485 (Okl.Cr.1989) (Lumpkin, J., dissenting).  Petitioner pled guilty to numerous felony charges, including four violent offenses, rape, two counts of robbery with firearms, and attempted kidnapping for extortion, which carry potential life sentences.  The record shows Petitioner was advised at the time he entered the guilty pleas of the range of punishment for each offense.  Petitioner was advised of and indicated his understanding of the trial rights he was waiving by entering the pleas.  Petitioner stated that there was no agreement with anyone or promise as to what the punishment would be, and Petitioner stated he was entering the pleas voluntarily, because he was guilty of the offenses charged.  The pleas were entered in open court on September 22, 1989, and Petitioner exercised his right to be sentenced after a presentence report was submitted to the trial court.  Sentencing on the convictions was not conducted until November 2, 1989.  At sentencing, Petitioner was again advised of the range of punishment for each offense and stated he understood he could be sentenced within those limits.  The trial judge sentenced Petitioner to concurrent sentences on all but one of the offenses (with the longest being 35 years) and sentenced Petitioner to a consecutive 40-year sentence on the rape offense.  The record shows that Petitioner was advised of the procedure for withdrawing the guilty pleas.  Petitioner stated that he did not want to remain in the county jail during the ten-day period following sentencing before being transferred to state custody to serve his sentences.

33
There is nothing in the record to indicate Petitioner misunderstood or was misinformed as to the maximum punishment that could be assessed by the trial court at sentencing or that Petitioner based his decision to enter the guilty pleas on any promise as to the punishment he would receive.  The record shows Petitioner was advised by the trial court of the range of punishment for each offense, that he could be sentenced within this range on each offense, and the procedure for appealing his guilty pleas.  Therefore, Petitioner has not shown that any of the alleged errors by counsel prejudiced the Petitioner, such that he would have proceeded to trial in the absence of the error.

34
The final allegation of attorney ineffectiveness is Petitioner's claim that Mr. Pugh did not advise him he could withdraw the pleas or contact him during the ten-day period following sentencing to determine whether Petitioner wanted to move to withdraw the pleas.  In response to this allegation, Mr. Pugh avers that both the trial court and Mr. Pugh advised Petitioner of the procedure to be followed to move to withdraw the pleas.  However, "[m]erely advising a defendant of his right to appeal is 'insufficient to satisfy the right to counsel.' "   Hardiman v. Reynolds, 971 F.2d 500, 506 (10th Cir.1992), quoting  Baker v. Kaiser, 929 F.2d 1495, 1499 (10th Cir.1991).

35
Petitioner's constitutional right to counsel extended to the ten-day period following sentencing.  Baker v. Kaiser, supra.   There is no indication in the record that Mr. Pugh contacted Petitioner during the pertinent ten-day period.  On the other hand, there is no indication in the record that Petitioner attempted to contact Mr. Pugh or wanted his assistance during the relevant time period.2  At sentencing, Petitioner expressed his desire to begin serving his sentences immediately, although he was advised that he could choose to remain in the county jail during the pertinent 10-day period following sentencing.  Additionally, Petitioner did not seek post-conviction relief for some two years after sentencing.  There is no evidence in the record showing that Petitioner was indigent or that Petitioner made an attempt to retain counsel or have counsel appointed for purpose of an appeal.   Cf. Baker v. Kaiser, supra at 1499-1500 (counsel appointed to appeal indigent defendant's conviction provided constitutionally ineffective assistance where counsel failed to contact defendant during ten-day period following sentencing).

36
A criminal defendant generally has no right to notice concerning the right to appeal a guilty plea.  Hardiman v. Reynolds, supra.   There are two exceptions to this general rule, and counsel's duty to inform a defendant of the right to appeal arises "[i]f a claim of error is made on constitutional grounds, which could result in setting aside the plea, or if the defendant inquires about an appeal right."   Laycock v. New Mexico, 880 F.2d 1184, 1188 (10th Cir.1989).  The record shows Petitioner's pleas were voluntarily and knowingly entered, with an adequate understanding of the consequences of the pleas.  Petitioner had retained counsel who provided constitutionally adequate assistance in advising Petitioner to enter guilty pleas, and there is no evidence indicating that Petitioner inquired about an appeal.

37
Additionally, the only constitutional claim asserted by Petitioner is that his defense attorney provided ineffective assistance of counsel.  Petitioner does not allege that during the pertinent time period Mr. Pugh was made aware of or had reason to know that Petitioner believed Mr. Pugh's assistance had been constitutionally inadequate.  Counsel's duty to inform his client of his right to appeal a guilty plea arises when "counsel either knows or should have learned of his client's claim or of the relevant facts giving rise to that claim."   Hardiman v. Reynolds, supra, at 506.  Mr. Pugh had no duty to inform Petitioner of his right to appeal the guilty pleas in the absence of any evidence demonstrating Mr. Pugh knew or should have known Petitioner believed his assistance was constitutionally inadequate.  Laycock v. New Mexico, supra.   Therefore, Petitioner's attorney did not provide constitutionally ineffective assistance in failing to inform or advise Petitioner concerning an appeal from his guilty pleas.

38
Accordingly, the undersigned recommends that judgment issue denying the writ of habeas corpus and dismissing the cause of action.  By law, the parties are granted until the 27th day of August, 1993, within which to file an appeal/objection, failing which this may become the final Order of the Court without further notice.  This enlargement of the statutory period of time obviates the need for any motion for an extension of time.

39
/s/ Ronald L. Howland

RONALD L. HOWLAND
United States Magistrate Judge

*
 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.  The court generally disfavors the citation of orders and judgments;  nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order filed November 29, 1993.  151 F.R.D. 470

1
 In one reported case involving the situation where the petitioner was represented by the same counsel on appeal as at trial, the appellate court raised the issue of ineffective assistance of trial counsel sua sponte, noting that counsel could not be expected to assert his own incompetence.   Smith v. State, 650 P.2d 904, 908, n. 7 (Okl.Cr.1987)

2
 Although Petitioner alleges in the petition that at some unidentified time after sentencing, he unsuccessfully tried to contact Mr. Pugh to withdraw his pleas, he admits in his "Response to This Court's Order of June 17, 1993" that he failed to contact his attorney or request counsel's assistance during the ten-day period following sentencing.  Petitioner's "Response ...", at 13


939 F.2d 135
UNITED STATES of America, Plaintiff-Appellee,v.Egbert RICHARDSON, a/k/a Bunny, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Ivan TAYLOR, a/k/a Carlos, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Egbert RICHARDSON, a/k/a Bunny, Defendant-Appellant.
Nos. 89-5263, 89-5264 and 90-7045.
United States Court of Appeals,Fourth Circuit.
Argued March 8, 1991.Decided July 1, 1991.As Amended Aug. 6, 1991.

Steven Douglas Dennis, Holler, Dennis, Olive, Merry, Lengel & Garner, Columbia, S.C., argued (Victor T. Gutierrez, Law Offices of Victor T. Gutierrez, Miami, Fla., and Thomas B. Levy, Sr., on briefs, Columbia S.C.), for defendants-appellants.
Mark C. Moore, Asst. U.S. Atty., argued (E. Bart Daniel, U.S. Atty., Robert C. Jendron, Jr., Asst. U.S. Atty., on brief), Columbia, S.C., for plaintiff-appellee.
Before RUSSELL, Circuit Judge, CHAPMAN, Senior Circuit Judge, and DUPREE, Senior United States District Judge for the Eastern District of North Carolina, sitting by designation.
OPINION
CHAPMAN, Senior Circuit Judge:

1
Ivan Taylor, Egbert Richardson, Anna Jean Bradley, and Freddie Lloyd were indicted for conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. Sec. 846.  Taylor and Richardson were also indicted for possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) and (b)(1)(B).  Taylor, Richardson and Bradley entered pleas of guilty to the conspiracy count, and Taylor received a sentence of 190 months, Richardson 200 months, and Bradley 97 months.  All the sentences contained a five year period of supervised release.  The appellants had been sentenced prior to the time that Freddie Lloyd was arrested.  Appellants Taylor and Richardson agreed to testify for the government in the Lloyd trial.  Shortly after Richardson testified, Lloyd entered a plea of guilty.  The government then filed a motion for correction of sentence under Federal Rule of Criminal Procedure 35(b) as to both Taylor and Richardson and the district court reduced the sentences of both Taylor and Richardson by 35 months each.

2
Appellants Taylor and Richardson appeal their sentences.  Taylor claims that the district court erred in classifying him as an organizer or leader of five or more participants under U.S. Sentencing Guideline (U.S.S.G.) Sec. 3B1.1(a) and increasing his offense level by four, because he claims the evidence showed that he was only a supplier of cocaine and not an organizer or leader.  He also claims error by the district court in failing to grant him a further downward departure particularly in view of the motion of the government supporting a downward departure and the substantial assistance given by him and a downward departure for a less deserving codefendant.  Richardson claims error in his sentence because the district court found:  (1) that he was reasonably capable of producing ten kilograms of cocaine under negotiations he had with an undercover agent;  (2) that it was reasonably foreseeable to Richardson that Taylor would be able to sell additional cocaine in South Carolina without his personal involvement;  and (3) that he was an organizer or leader under U.S.S.G. Sec. 3B1.1(c).  Richardson also claims error because the district court did not reduce his sentence proportionately with his codefendant.

3
* Egbert Richardson lived in Miami with his common law wife, Anna Jean Bradley.1   In 1984, Richardson met Ivan Taylor, an Hispanic Miami businessman, who operated a small furniture factory, and they decided to go into the cocaine business.  Taylor was to provide the money and Richardson was to arrange the purchase and sale of the cocaine.  It was not long before Taylor began to take a more active role in the business.  Taylor found that Richardson was unreliable because he personally used cocaine and was often short cocaine and money that had been received.  Taylor and Richardson soon parted company, and Taylor began to deal directly with suppliers and consumers to whom he had been introduced by Richardson.

4
In 1987, Richardson returned to Taylor with another cocaine proposition.  Richardson had been traveling in South Carolina, and he advised Taylor that the Holly Hill and Orangeburg areas of South Carolina and the area around High Point, North Carolina were "dry" and in need of cocaine.  He argued that the partners could prosper from the consumer demand and the high prices available in these areas.  In the fall of 1987, Richardson and Taylor traveled by plane to Charleston, South Carolina where they met Richardson's friend, Freddie Lloyd.  Taylor had brought with him approximately one kilogram of cocaine and had paid Richardson's travel expenses.  The appellants then traveled with Lloyd to Lee County where they met Henry Lee Harris and Anthony Joe McFadden, who purchased Taylor's kilo of cocaine for $22,000.  Charles Mason Jones and Willard Scott Wearing were also present at this meeting.  Richardson and Taylor then returned to Miami, but approximately two weeks later they returned to South Carolina.  Just prior to their return to South Carolina, they had made a trip to North Carolina to deliver cocaine to a buyer produced by Richardson.  The buyer was known only as Charlie.

5
On this second trip to South Carolina, Richardson and Taylor traveled by automobile and stopped at a motel in Santee, South Carolina.  Taylor had with him approximately one pound of cocaine.  Richardson vanished with half of the cocaine and Taylor's car.  Richardson later explained that he used most of the cocaine to party with several female friends.

6
Taylor returned to Miami alone and complained of Richardson's behavior to Bradley, who advised him that she was not responsible for Richardson, and that Richardson had cost her money by running up large telephone bills without payment.

7
After this trip to South Carolina, Taylor had nothing further to do with Richardson.  However, Taylor returned to South Carolina on several occasions and eventually sold approximately 13 kilos of cocaine to McFadden and Harris, and he sold an additional two and a half kilos in North Carolina to the buyer he had previously met through Richardson.  The South Carolina customers were eventually arrested for cocaine trafficking and they identified Taylor and Richardson as the source of their cocaine supply.

8
Prior to arresting Taylor and Richardson, a South Carolina law enforcement division (SLED) agent, who had obtained Richardson's telephone number when Harris and McFadden were arrested, contacted Richardson by telephone and attempted to purchase ten kilograms of cocaine.  This deal was never consummated.  Although the SLED agent wired $1300 in expense money to Florida, most of these funds ($1,000) went to Bradley, who advised the SLED agent that she might be able to put together a large purchase for him.

9
After Richardson, Taylor and Bradley were arrested, Richardson was the first to admit guilt and enter into a plea agreement.  Eventually Taylor and Bradley also pled guilty.  At sentencing, the court found that Taylor had a total offense level of 34 with a criminal history category II.  This calculation was derived from using a base offense level of 32 from the court's finding that the total amount of cocaine attributable to Taylor was 13 kilograms, then adding a four level increase as a leader or organizer under Sec. 3B1.1, and a two level reduction for acceptance of responsibility under Sec. 3E1.1.  These calculations produced a guideline range of 160 to 210 months and the court entered a sentence of 190 months in prison to be followed by a five year period of supervised release.  Approximately one month after the sentencing of Taylor and Richardson, Freddie Lloyd was arrested.  Both Taylor and Richardson agreed to testify against Lloyd.  After Lloyd's trial began, Richardson was the government's first witness.  When he had completed his testimony, Lloyd entered a guilty plea.  The government then filed a motion for correction of sentence under Rule 35(b) and the district court reduced Taylor's sentence by 35 months leaving him with a corrected sentence of 155 months.

10
At the sentencing of Richardson, the court found his total offense level to be 36 with a criminal history category I.  This calculation resulted from use of a base offense level of 32 upon a finding by the court that the total amount of cocaine attributable to Richardson was 23 kilograms.  This weight was derived by adding the amount distributed by Richardson to the amounts distributed by Taylor, after the partnership ended, and the ten kilograms under negotiation by telephone with the SLED agent from South Carolina.  Richardson also received a four level increase under Sec. 3B1.1 and a two level reduction for acceptance of responsibility under Sec. 3E1.1.  These calculations resulted in a guideline range of 188 months to 235 months, and Richardson received a sentence of 200 months in prison to be followed by a five year term of supervised release.  As a result of the government's motion following Freddie Lloyd's plea of guilty, the court reduced Richardson's sentence by 35 months leaving a corrected sentence of 165 months.

II

11
Taylor claims error by the sentencing judge in finding that he was leader of a criminal activity that involved five or more participants and increasing his offense level by four under Sec. 3B1.1(a) which provides "[i]f the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels."

12
The adjustments in the offense level under Sec. 3B1.1(a) for the defendant's role in the offense are factual determinations and the district court's findings on this issue are reviewed under a clearly erroneous standard.  United States v. Daughtrey, 874 F.2d 213 (4th Cir.1989).  The record shows that Richardson had the initial contacts in South Carolina and North Carolina that were used to distribute cocaine, but that Taylor was the real leader and that, without Taylor, there would have been nothing to distribute.  Taylor had the financial resources needed to buy the cocaine. Initially, Taylor was to furnish money and Richardson was to acquire and distribute the cocaine.  When Richardson proved unreliable by using cocaine instead of selling it, Taylor handled the purchasing and the distribution.

13
When the conspiracy was renewed in 1987, Taylor was the obvious leader.  He furnished the money, paid the travel expenses of both himself and Richardson, and he had refused to allow Richardson to go back to South Carolina alone.  When Richardson ran off with half of the cocaine and with Taylor's automobile in Santee, Taylor contacted Lloyd and had Lloyd drive him to meet Harris.  Taylor refused to take Richardson on any subsequent trips to South Carolina, and, without Richardson's assistance or presence he was able to sell 11 additional kilograms of cocaine in South Carolina.  He thereby increased his share of the profits.  Application Note 3 of the Commentary to Sec. 3B1.1 provides:

14
Factors the court should consider include the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.

15
When Taylor's activities are viewed in light of this note, it is obvious that he was both an organizer and a leader of the criminal activity and that without him the activity would not have existed.  After the split at Santee, Taylor was the undisputed leader and claimed "a larger share of the fruits of the crime."

16
Taylor also challenges the finding that the activity involved five or more participants.  This claim is without merit.  Taylor's first meeting in South Carolina in the fall of 1987 included himself, Richardson, Lloyd, Harris, McFadden, Jones and Wearing.  In addition, there was Anna Jean Bradley who was involved in the activity and entered a plea of guilty.  There were ample facts to support the district court's finding that a four level increase was appropriate under Sec. 3B1.1.

17
Taylor also claims that the district court erred in failing to make a downward departure from the sentencing guidelines at the time of his original sentence, particularly in light of the government's motion under Sec. 5K1.1 for a downward departure of ten to fifteen percent "from the lowest sentence authorized by the guidelines" and the district court's granting of a reduction of sentence to Anna Jean Bradley, a less deserving codefendant.

Guideline Sec. 5K1.1 provides:

18
Upon motion of the government stating that the defendant has made a good faith effort to provide substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines.  (Emphasis added)

19
It is obvious from the language of this section that motions by the government for a downward departure are committed to the discretion of the sentencing judge.  In United States v. Bayerle, 898 F.2d 28 (4th Cir.1990), we held that a refusal by a district judge to depart downward in response to a defendant's motion was not appealable.  Taylor argues that Bayerle is not applicable to the present facts because the government made a motion for a downward departure in his case and had not done so in Bayerle.    However, this does not remove the motion from the sentencing court's discretion, and there has been no showing of an abuse of discretion by the court in denying Taylor's motion.  The granting of a downward departure to a codefendant is not sufficient to establish abuse.

20
The Sentencing Reform Act of 1984, 18 U.S.C. Sec. 3742, expanded appellate review of sentences, but limited it to four claims.  Appeal of the sentence is available only when the sentence is:  (1) in violation of law;  (2) based on an incorrect application of the guidelines;  (3) greater than the maximum set by the guidelines;  or (4) imposed for an offense for which no guideline has been promulgated and is plainly unreasonable.  Id.  Appellant does not fit into any of these exceptions.  In response to a Rule 35 motion, the court reduced Taylor's sentence by 35 months, but it was not error for the court to refuse a downward adjustment at the time of the initial sentence or to refuse to grant a reduction greater than 35 months.

III.
A.

21
Richardson makes similar claims that he was not a leader or organizer under Sec. 3B1.1(a) and that the district court abused its discretion in not granting him a reduction in sentence of the same degree or proportion as that granted to his codefendants, particularly to Taylor.  There is no merit to either of these claims.

22
Richardson was an organizer of the criminal activity that involved five or more persons.  He was the instigator, and with Taylor, an organizer of the conspiracy that began in 1987.  He had the contacts in North Carolina and South Carolina who were necessary to the success of their business and who were used in the distribution of the cocaine.  He enjoyed a leadership position in the conspiracy until his personal use of cocaine ended his participation.  While he was active in the criminal activity, there were five or more persons involved as more particularly set forth in Section II above.  The findings of the district court on this issue are not clearly erroneous.

23
Richardson also claims that the reduction of his sentence following the Rule 35 motion was not proportional to the reduction granted to Taylor.  Both Richardson and Taylor received reductions of 35 months, but Richardson argues that a reduction of 35 months from Taylor's original sentence of 190 months resulted in a greater percent of reduction than he received when his original sentence of 200 months was reduced by 35 months.  There is no requirement of proportionality in the reduction of sentences.

24
The government argues that the district court's action in response to a motion under Rule 35(b) is not appealable.  It is not necessary for us to decide the issue of appealability in this case because the argument by Richardson is so lacking in merit.  Under the clear language of Rule 35(b), the judge is not required to grant any reduction.  Here, he granted a reduction of the same number of months to both Richardson and Taylor, and there is no requirement of proportionality in these reductions.

B.

25
Richardson claims error in the district court's findings that he could have reasonably foreseen all of the cocaine distributed by Taylor in South Carolina after Richardson was out of the conspiracy.  The court based its findings on three factors:  (1) Richardson personally introduced Taylor to the buyers;  (2) Richardson and Taylor sold cocaine to the buyers;  and (3) Richardson was aware of Taylor's access to large amounts of cocaine.

26
The government argues that Richardson had knowledge that Taylor made additional sales in South Carolina after their split at Santee, and Richardson could therefore reasonably foresee all of Taylor's sales in South Carolina.  Under the government's argument, Richardson, by his short association with Taylor during which he introduced him to several buyers in South Carolina, is responsible for all cocaine sales by Taylor to the South Carolina buyers.  The association between Richardson and Taylor ended when Richardson ran off with half of the cocaine and Taylor's automobile at Santee.  At this point, Richardson was out of the conspiracy, and he is only chargeable with future sales by Taylor in South Carolina that were reasonably foreseeable at the time of their split at Santee in November 1987.

27
Richardson argues that he could not reasonably foresee that Taylor would make further sales in South Carolina because Taylor was an outsider, was foreign-born, and the South Carolina contacts were suspicious of foreigners.  When Taylor first attempted to sell cocaine in South Carolina without Richardson's involvement, he could not find a buyer, and only one kilogram of cocaine was sold in South Carolina while Taylor and Richardson were partners.  Thus, Richardson argues that he could not foresee the subsequent sale by Taylor of 13 kilos in South Carolina and two and one-half kilos in North Carolina.

28
Normally, a defendant is not responsible for the actions of coconspirators committed after he has ceased to be a member of the conspiracy.  However, the sentencing guidelines seek to establish the relevant conduct of a defendant and then to provide an appropriate punishment.  Section 1B1.3(a) provides:

29
(a) Chapters Two (Offense Conduct) and Three (Adjustments).    Unless otherwise specified, (i) the base offense level where the guideline specifies more than one base offense level, (ii) specific offense characteristics and (iii) cross references in Chapter Two, and (iv) adjustments in Chapter Three, shall be determined on the basis of the following

30
(1) all acts and omissions committed or aided and abetted by the defendant, or for which the defendant would be otherwise accountable, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense, or that otherwise were in furtherance of that offense;

Application Note 1 Sec. 1B1.3(a) provides:

31
Conduct "for which the defendant would be otherwise accountable," as used in subsection (a)(1), includes conduct that the defendant counseled, commanded, induced, procured, or willfully caused.  (Cf. 18 U.S.C. Sec. 2.)    If the conviction is for conspiracy it includes conduct in furtherance of the conspiracy that was known to or was reasonably foreseeable by the defendant.  If the conviction is for solicitation, misprison or accessory after the fact, it includes all conduct relevant to determining the offense level for the underlying offense that was known to or reasonably should have been known by the defendant.

32
The "offense of conviction" must be kept in the foreground when considering a defendant's relevant conduct and whether he "would be otherwise accountable" for the acts of a coconspirator.  See United States v. Wood, 924 F.2d 399, 404 (1st Cir.1991).  Richardson was charged with, and pled guilty to, being a member of a conspiracy that existed from June, 1987 to December 20, 1988 with the purpose of possessing with intent to distribute cocaine within the District of South Carolina and elsewhere--this is Richardson's "offense of conviction."    However, since this was a jointly undertaken criminal activity, Richardson's relevant conduct is determined by what was "reasonably foreseeable" to him.  In making its finding as to what was reasonably foreseeable, the district court found:

33
If he [Richardson] brought him [Taylor] up here and introduced him to these people in person, and he and Taylor did business with them one time, it would be surely easily foreseeable that if Taylor himself came up again and made the contact with the people he had done business with before, that it was easily foreseeable Taylor could sell that.

34
In United States v. Vinson, 886 F.2d 740 (4th Cir.1989), we held that the sentencing court's findings as to the amount of cocaine distributed by a conspiracy was a finding of fact by the sentencing court and must be accepted on appeal unless clearly erroneous.  We have observed:

35
According to the Commentary to Guideline Sec. 2D1.4, a defendant convicted of conspiracy should be sentenced "only on the basis of [his] conduct or the conduct of coconspirators in furtherance of the conspiracy that was known to the defendant or was reasonably foreseeable."    Since the base offense level in drug cases, both conspiracy and otherwise, is directly determined by the type and amount of drugs involved, the determination of the foreseeability of the extent of the overall conspiracy is often critical.  This is clearly a question of fact which will only be overturned on appeal if it is clearly erroneous.  If, as Vinson contends, his criminal conduct was limited to purchasing only 14 ounces for his own use, and further that it was not reasonably foreseeable that his codefendants would sell many times that amount during the life of the conspiracy, then a reconsideration of his sentence might well be in order.  We do not, however, find that such is the case before us.

36
Id. at 742.

37
Richardson has a much stronger factual case than did Vinson.  The only evidence of record shows that Richardson and Taylor renewed their cocaine business in the fall of 1987.  They made a trip to South Carolina during which they sold less than one kilogram of cocaine, and Richardson introduced Taylor to Freddie Lloyd, Henry Harris and Anthony McFadden, and, through them, to Charles Jones and Willard Wearing.  They made one trip to North Carolina and delivered cocaine to Richardson's contact known only as Charlie.  Shortly thereafter, they made a second trip to South Carolina, which resulted in Richardson being forced out of the conspiracy because he deserted Taylor at Santee and took Taylor's car and a large amount of cocaine with him.  This cocaine was not sold but used.

38
Taylor's activities in the Carolinas continued for almost a year after Richardson was out of the conspiracy.  For how long would Richardson "be otherwise accountable" for the sale and distribution by his former partner Taylor?    The limit, as established by the guidelines, is the amount of cocaine that Richardson could "reasonably foresee" that Taylor could sell through those persons in the Carolinas to whom he had been introduced by Richardson.  The present facts represent the outer limits of what could be "reasonably foreseeable."    The additional cocaine distributed by Taylor, after Richardson departed, was sold to Richardson's contacts within a year.  While it is reasonable to find that Richardson could foresee some additional sales by Taylor, it would be both unreasonable and unfair to hold him responsible for all sales by Taylor to these contacts for an indefinite period of time.  Although we cannot say that the findings of the district court are clearly erroneous, we can state that this is about as far as reasonable foreseeability can be taken.

C.

39
Richardson also challenges the finding of the district court that he was chargeable with an additional ten kilograms of cocaine because of his telephone conversations with an undercover agent Ken Aycock, who used the name "Pappy."    These conversations occurred over a period of eight weeks.  They began after Richardson had left Taylor and after Richardson's Miami telephone number had been obtained by South Carolina police officers when they arrested some of the South Carolina customers.  Agent Aycock began to call Richardson in an effort to arrange a purchase of ten kilograms of cocaine.  This deal was never consummated, but the agent wired $1,300 in expense money to Richardson in Florida.  Of this amount, $1,000 went directly to Anna Bradley, Richardson's common law wife, who advised Aycock that she might be able to put together a deal for him.  Richardson was not able to produce any amount of cocaine and claimed that he was planning to "rip Pappy off," take some money and not produce the drugs.

40
The district court found that these ten kilograms were chargeable to Richardson because if he had the money he could have gotten the cocaine.    This is an inadequate finding and is not supported by any evidence.

41
Application Note 1 to Sec. 2D1.4 provides in part:

42
Where the defendant was not reasonably capable of producing the negotiated amount the court may depart and impose a sentence lower than the sentence that would otherwise result.

43
There is nothing in the record to support a finding that Richardson could have produced anything that required the payment of money.  The reason that he became involved with Taylor in 1984 and again in 1987 was not because Taylor knew anything about the buying and selling of cocaine, but because Taylor had the money necessary to make the purchases and Richardson had the know how to make the sales.  The "offense conduct" in the presentence reports of both Richardson and Taylor indicate that "Taylor was to provide the funding, Richardson was to serve as a 'broker' by locating willing buyers and sellers."    The presentence report also indicates that Richardson's usual employment was as a casual laborer, that he had no bank account, no cash on hand and no assets.  It is also clear from the record that it would have cost $150,000 to purchase ten kilograms of cocaine for resale.  There is nothing in the record to show how Richardson could have raised $150,000 or any substantial amount of money, and without the money he was not "reasonably capable" of producing any cocaine.  While he was associated with Taylor, such a deal might have been possible, but Taylor was no longer in the picture and his resources were unavailable to Richardson.  Richardson was such a poor businessman that he could not even retain the "expense money" forwarded to him by Agent Aycock;  his girlfriend took $1,000 of this amount and tried to interest Aycock into dealing with her.  "If" is not sufficient under the guidelines.  The test is whether the defendant "was reasonably capable of producing" ten kilograms of cocaine.  The finding that Richardson was reasonably capable of producing this amount of cocaine, because he would have produced it, if he had the money, is clearly erroneous on the present record.  Therefore, the sentence of Richardson must be vacated and his case remanded for resentencing without any consideration of the conversations or negotiations between Richardson and Agent Aycock or the ten kilograms that were discussed.

44
The sentence of Taylor is affirmed, and the sentence of Richardson is vacated and his case is remanded for resentencing.

45
AFFIRMED AS TO TAYLOR;  SENTENCE VACATED AND REMANDED FOR RESENTENCING AS TO RICHARDSON.

1
 Bradley entered a guilty plea to possession of cocaine with intent to distribute on charges arising out of the same facts.  She received a sentence of 97 months and appealed.  Her conviction and her sentence were affirmed by this court on March 19, 1991.  928 F.2d 400 (1991)


                                              COURT OF APPEALS OF VIRGINIA

              Present: Judges Russell, Malveaux and Senior Judge Clements
UNPUBLISHED

              Argued by teleconference

              NEUROSURGICAL SPECIALISTS, INC.
                                                                              MEMORANDUM OPINION* BY
              v.     Record No. 0076-20-1                                   JUDGE JEAN HARRISON CLEMENTS
                                                                                JULY 14, 2020
              HUNTINGTON INGALLS, INCORPORATED AND
               YORK RISK SERVICES GROUP

                            FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                               Philip J. Geib (Philip J. Geib, P.C., on brief), for appellant.

                               Christopher R. Hedrick (Mason, Mason, Walker & Hedrick, on
                               brief), for appellees.

                     Appellant, Neurosurgical Specialists, Inc. (“provider”), sought payment from the Virginia

              Workers’ Compensation Commission (“Commission”) for medical treatment provided to an

              employee of Huntington Ingalls, Incorporated (“employer”). The Commission granted

              employer’s motion to dismiss, finding that it lacked jurisdiction under Code § 65.2-605.1(G).

              Provider contends on appeal that the Commission erred in interpreting and applying the statute.

              Provider also argues that the Commission’s ruling violates its due process and substantive rights

              under Article I, Section 11 of the Virginia Constitution. We find that this case is controlled by

              the published opinion issued this day in Wardell Orthopaedics, P.C. v. Colonna’s Shipyard, Inc,

              ___ Va. App. ___ (July 14, 2020), which addressed identical issues, and affirm the

              Commission’s ruling.1

                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                       Under the interpanel accord doctrine, a published opinion of a panel of this Court binds
              all subsequent three-judge panels. See Vay v. Commonwealth, 67 Va. App. 236, 257 (2017).
                                        BACKGROUND2

       The evidence established that Alonza Martin sustained a compensable injury by accident

on May 26, 2005, while working for employer. The Commission entered an award for lifetime

medical benefits and periods of temporary total disability on July 12, 2006.3 Payments totaling

$8,900.81 were made to provider under the Longshore and Harbor Workers’ Compensation Act

(“LHWCA”).

       Provider filed an application with the Commission on November 19, 2018, seeking an

alleged underpayment of $28,494.19 for medical services rendered to Martin on June 28, 2006,

and requesting an evidentiary hearing. On May 8, 2019, a hearing was set for July 8, 2019.

Employer moved to dismiss on July 2, 2019. Employer argued that under Code § 65.2-605.1(G),

which became effective July 1, 2019, the Commission lacked subject-matter jurisdiction over the

claim. The Commission denied the motion and continued the hearing; employer renewed the

motion to dismiss on July 16, 2019. Provider did not respond to the motion. The deputy

commissioner held an on-the-record hearing on July 31, 2019, and concluded that the

Commission lacked jurisdiction over provider’s claim. Provider sought review by the full

Commission, which affirmed the deputy’s ruling on December 9, 2019. This appeal followed.

Although the opinion in Wardell was held to be released in conjunction with the decision in this
case, Wardell was argued and decided before this case, and therefore, is binding under the
interpanel accord doctrine.
       2
        On appeal, this Court views the evidence in the case in the light most favorable to the
employer, the party prevailing before the Commission. See Samartino v. Fairfax Cty. Fire &
Rescue, 64 Va. App. 499, 502 (2015).
       3
           Martin was awarded an additional period of wage loss benefits on March 19, 2017.
                                               -2-
                                           ANALYSIS

       As in Wardell, this case requires us to construe Code § 65.2-605.1(G). The statute

became effective July 1, 2019,4 and provides that

               [n]o health care provider shall submit, nor shall the Commission
               adjudicate, any claim to the Commission seeking additional
               payment for medical services rendered to a claimant before July 1,
               2014, if the health care provider has previously accepted payment
               for the same medical services pursuant to the [LHWCA].

Code § 65.2-605.1(G).

       The Commission ruled that, even though provider had filed its claim before July 1, 2019,

the plain language of Code § 65.2-605.1(G) foreclosed the Commission’s jurisdiction to consider

provider’s application for additional payment because the medical services had been rendered to

Martin in 2006 and provider had previously accepted payment for those services under the

LHWCA. Provider contends that the Commission misinterpreted and misapplied the statute in

violation of its due process and substantive rights. However, as this Court held in Wardell, ___

Va. App. at ___ , the plain language of Code § 65.2-605.1(G) evinces the legislature’s intent to

remove certain claims from the Commission’s jurisdiction. Accordingly, the Commission

neither misinterpreted nor misapplied the statute as it pertained to provider’s case. See Wardell,

___ Va. App. at ___.

       As did the medical provider in Wardell, provider argues that the legislature intended the

word “adjudicate” in Code § 65.2-605.1(G) to mean “commence” a legal proceeding, and thus

subsection G does not apply in this case because provider had submitted its claim in November

2018 before the statute took effect. However, as the Court determined in Wardell, provider did

       4
        The Wardell opinion sets forth the applicable statutory history. See Wardell, ___
Va. App. at ___.
                                             -3-
not make this same argument before the Commission and cannot raise it for the first time on

appeal. See id. at ___ (holding that Rule 5A:18 barred claim).

       Provider also argues that it did not “accept” payment under the LHWCA, and thus the

Commission misapplied Code § 65.2-605.1(G). The Wardell Court rejected this same argument,

holding that the provider’s reliance on Northrop Grumman v. Wardell Orthopaedics, 67 Va. App.

420 (2017) (“Everett”), and Newport News Shipbuilding v. Wardell Orthopaedics, 67 Va. App.

404 (2017) (“Bell”), was misplaced because those cases addressed accord and satisfaction as an

affirmative defense to the medical provider’s claims for additional payments for medical services

rendered to injured employees. See Wardell, ___ Va. App. at ___. An accord and satisfaction

defense was not raised here. Further, neither Everett nor Bell defines the phrase, “accepted

payment,” as applied in Code § 65.2-605.1(G). This Court may not read into a statute language

that the legislature chose not to include. See Cty. of Amherst Bd. of Supervisors v. Brockman,

224 Va. 391, 397 (1982). “The plain language of the statute does not require that the employer

must prove that the provider accepted payment in full satisfaction of the amount owed.”

Wardell, ___ Va. App. at ___.

       Provider’s argument also fails because the record establishes that provider accepted

payment under the LHWCA. Employer attached to its motion to dismiss an affidavit from its

former manager of compensation claims, which stated that payment had been made to provider

under the LHWCA. The affidavit further stated that there was no record of any communication

from provider contesting payment under the Department of Labor fee schedule, contending it

should be paid additional amounts under the Act, or asserting it was accepting payment under

protest. The deputy commissioner found that employer made payments to provider under the

LHWCA and that provider accepted the payments. The Commission “summarily adopt[ed] and

incorporate[d] by reference” the deputy commissioner’s ruling. Where the Commission’s factual

                                               -4-
findings are supported by credible evidence, as they are here, this Court is bound to accept

them.5 See Hoffman v. Carter, 50 Va. App. 199, 209 (2007).

          Finally, provider argues that applying Code § 65.2-605.1(G) retroactively to its claim

violates its due process and substantive rights under Article I, Section 11 of the Virginia

Constitution.6 The Wardell Court also rejected this argument, holding that the statute addresses a

procedural remedy and “contain[s] an expression of retrospective legislative intent.” Wardell,

___ Va. App. at ___ (quoting Cohen v. Fairfax Hosp. Ass’n, 12 Va. App. 702, 705 (1991)).

Therefore, it may be applied retroactively. See id.; Sussex Cmty. Serv. Ass’n v. Va. Soc’y for

Mentally Retarded Children, 251 Va. 240, 243-44 (1996); Buenson Div., Aeronica, Inc. v.

McCauley, 221 Va. 430, 432 (1980); Allen v. Mottley Construction Co., 160 Va. 875, 889-90

(1933).

          Code § 65.2-605.1(G) states that “[n]o health care provider shall submit, nor shall the

Commission adjudicate, any claim . . . .” (Emphasis added). “The legislature’s use of the phrase

‘any claim’ in describing the claims to which the new statute applied demonstrates the General

Assembly’s intent that the statute apply to all claims after July 1, 2019, including those filed

before July 1, 2019, but not yet adjudicated.” Wardell, ___ Va. App. at ___ (noting that “if the

legislature had not intended the statute to apply to pending claims, it would have so specified”

and that adopting provider’s interpretation “would render meaningless the provision prohibiting

         Provider’s contention that credible evidence does not support the Commission’s finding
          5

has not been preserved for appeal. When provider asked for a review by the full Commission, it
alleged for the first time that the Commission had unfairly granted employer’s motion to dismiss
without holding an evidentiary hearing and by considering the submitted affidavit and supporting
evidence. The Commission determined that provider had waived its objection by failing to
respond to the motion to dismiss. Accordingly, we do not address provider’s argument. See
Mouhssinne v. Crystal City Laundry, 62 Va. App. 65, 82 (2013) (holding that where the
Commission did not rule on an issue, Rule 5A:18 barred appellate review).

         Article I, Section 11 states, in part, that “no person shall be deprived of his life, liberty,
          6

or property without due process of law.”
                                                  -5-
the[] adjudication” of claims filed after July 1, 2019, because “[t]here would be no reason to

adjudicate claims that could not be submitted”). Accordingly, “Code § 65.2-605.1(G) does not

contain language that applies the statute only prospectively, but instead manifests an intent to

apply it retrospectively.” Id. at ___.

       The Wardell Court further held that Code § 65.2-605.1(G) is “procedural in nature and

affect[s] remedy only[,] disturb[ing] no [substantive or] vested rights.” Id. at ___ (quoting

Buenson, 221 Va. at 432; Cohen, 12 Va. App. at 705). “Substantive rights concern the ‘creation

of duties, rights, and obligations, as opposed to procedural or remedial law, which prescribes

methods of obtaining redress or enforcement of rights.’” Id. at ___ (quoting Shiflet v. Eller, 228

Va. 115, 120 (1984)). In imposing a time limitation for adjudicating a claim where no similar

limitation had existed previously, Code § 65.2-605.1(G) “affected only a provider’s procedural

right to seek additional payment from the Commission, not its substantive right to be paid for

services rendered to the injured employee.” Id. at ___.

       Additionally, a litigant is entitled “to a particular mode of procedure” only if it availed

itself of that procedure while the governing statute was in force.7 Commonwealth v. Shaffer, 263

Va. 428, 433 (2002). See Brockman, 224 Va. at 395-96 (holding that an employer had sufficient

notice of a newly enacted statute concerning compensable heart disease to have given an

employee a physical examination before the statute’s effective date, and the failure to provide the

examination was “at the employer’s risk”). Here, the twelve-year delay in seeking additional

medical payments was “at [provider’s] risk.”

       Noting that the General Assembly passed Code § 65.2-605.1(G) on March 21, 2019, and

the statute became effective 102 days later on July 1, 2019, the Wardell Court determined that

       7
         We note that provider waited twelve years before pursuing additional payment and
offered no explanation for the delay.
                                              -6-
the medical provider had “a reasonable window of opportunity” to request that the Commission

adjudicate the claim before July 1, 2019, but did not request that the Commission do so.”

Wardell, ___ Va. App. at ___. See Commonwealth v. Owens-Fiberglas Corp., 238 Va. 595, 601

(1989) (finding that even thirty days between the date a statute was enacted and its effective date

was “sufficient to satisfy due process requirements when a newly-created time bar is applied to

existing causes of action and accrued rights of action”); Allen, 160 Va. at 882 (holding that the

ninety-day delay between the passage of a statute imposing a time limit for filing compensation

claims based on a change in condition and its effective date allowed litigants “a fair opportunity

to acquaint themselves with the provisions of the statute enacted at a given session in order to

institute and prosecute the appropriate proceeding for the preservation of their rights in

accordance therewith”). Similarly, here, we conclude that the Commission did not deny provider

any substantive right to additional payment by applying Code § 65.2-605.1(G) retroactively.

                                          CONCLUSION

        For these reasons, we hold that the Commission properly interpreted and applied Code

§ 65.2-605.1(G) and did not err in dismissing provider’s claim for additional payment based on a

lack of jurisdiction.

                                                                                Affirmed.

                                                -7-


89 S.E.2d 860 (1955)
243 N.C. 92
R. E. HOUGHTON
v.
H. V. HARRIS.
No. 175.
Supreme Court of North Carolina.
November 9, 1955.
*862 I. C. Wright and Stevens, Burgwin & McGhee, Wilmington, for plaintiff appellant.
Robert D. Cronly, Jr., Wilmington, and Varser, McIntyre & Henry, Lumberton, for defendant appellee.
BARNHILL, Chief Justice.
The judgment signed by Frizzelle, J., is not void for want of jurisdiction. He *863 acquired jurisdiction at term and signed the final judgment out of term and out of the county by consent of the parties. Edmundson v. Edmundson, 222 N.C. 181, 22 S.E.2d 576; Killian v. Maiden Chair Co., 202 N.C. 23, 161 S.E. 546; Strickland v. Kornegay, 240 N.C. 758, 83 S.E.2d 903.
The rule that a second action involving the same subject matter as one theretofore duly instituted will be dismissed whenever the existence of the former action is called to the attention of the court by answer or other proper plea is not jurisdictional. It is merely procedural, and is designed to prevent a multiplicity of actions. Whenever the existence of the former action is called to the attention of the court, he must dismiss the second action and relegate the plaintiff therein to his right to plead a cross action or counterclaim in the former action. When, however, the second action is prosecuted to final judgment before the first cause is heard, the judgment entered is valid and binding on the parties. It estops the parties and their privies as to all issuable matters contained in the pleadings, including all material and relevant matters within the scope of the pleadings which the parties in the exercise of reasonable diligence could and should have brought forward. Bruton v. Carolina Power & Light Co., 217 N.C. 1, 6 S.E.2d 822; Cleve v. Adams, 222 N.C. 211, 22 S.E.2d 567; Herring v. Queen City Coach Co., 234 N.C. 51, 65 S.E.2d 505; Snyder v. Kenan Oil Co., 235 N.C. 119, 68 S.E.2d 805; Annotation 2 A.L.R.2d 511.
There is a further reason why the judgment entered in the court below must be affirmed. The judgment entered in the case entitled Harris v. Houghton was entered by consent, and a consent judgment is a contract between the parties. By said compromise settlement, each party bought his peace respecting any liability created by the collision. The adjustment of said claim by the payment of the amount agreed constituted an acknowledgment, as between the parties, of the liability of Houghton and the nonliability of Harris, or at least a waiver of his liability. Neither party thereafter had any right to pursue the other in respect to any liability arising out of any alleged negligence proximately causing the collision which is the subject matter of the suit. Snyder v. Kenan Oil Co., supra.
A concluded agreement of compromise must in its nature be as obligatory in all respects as any other, and either party may use it whenever its stipulations or statements of fact become material evidence for him. Sutton v. Robeson, 31 N.C. 380; Snyder v. Kenan Oil Co., supra; Herring v. Queen City Coach Co., supra. See also Jenkins v. Fields, 240 N.C. 776, 83 S.E.2d 908; Lumberton Coach Co. v. Stone, 235 N.C. 619, 70 S.E.2d 673; Gaither Corp. v. Skinner, 241 N.C. 532, 85 S.E.2d 909, 911.
"It is to be noted that the phase of the doctrine of res judicata which precludes relitigation of the same cause of action is broader in its application than a mere determination of the questions involved in the prior action. The bar of the judgment in such cases extends not only to matters actually determined, but also to other matters which in the exercise of due diligence could have been presented for determination in the prior action. Bruton v. Carolina Power & Light Co., supra." Gaither Corp. v. Skinner, supra.
The pleaded judgment is regular upon its face. It was rendered by a court of competent jurisdiction in a case in which this plaintiff was the defendant, and want of jurisdiction of the person is not suggested. So long as it remains of record, it constitutes a complete bar to plaintiff's right to recover in this cause. Stone v. Queen City Coach Co., supra, and cases cited.
For the reasons stated the judgment entered in the court below is
Affirmed.


                             STATE OF WEST VIRGINIA

                                                                                FILED
                          SUPREME COURT OF APPEALS                               June 27, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
ROBERT F. HOLLINGSWORTH,                                                      OF WEST VIRGINIA

Claimant Below, Petitioner

vs.)   No. 13-0201 (BOR Appeal No. 2047585)
                   (Claim No. 2011038907)

UNITED DISPOSAL SERVICES, INC.,
Employer Below, Respondent

                             MEMORANDUM DECISION
       Petitioner Robert F. Hollingsworth, by Patrick K. Maroney, his attorney, appeals the
decision of the West Virginia Workers’ Compensation Board of Review. United Disposal
Services, Inc., by Gary W. Nickerson and James W. Heslep, its attorneys, filed a timely
response.

       This appeal arises from the Board of Review’s Final Order dated January 29, 2013, in
which the Board affirmed an August 3, 2012, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s June 14, 2011,
decision rejecting the claim. The Court has carefully reviewed the records, written arguments,
and appendices contained in the briefs, and the case is mature for consideration.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        Mr. Hollingsworth worked as a truck driver for United Disposal Services, Inc. On April
22, 2011, Mr. Hollingsworth allegedly injured his lower back and his right leg while climbing
into a dumpster. Mr. Hollingsworth sought treatment for his lower back and leg at Potomac
Valley Hospital. Mr. Hollingsworth underwent a lumbar spine x-ray which was described as
revealing diffuse extensive facet joint degenerative changes with severe narrowing at L5-S1
without any evidence of fracture or acute process. At that time, the petitioner was unsure what
had triggered his injury.
                                                1
        Mr. Hollingsworth then sought treatment from Allison L. Evans-Wood, D.O, who
recommended an MRI. Agusto F. Figueora Jr., M.D., reviewed the MRI with Mr. Hollingsworth
and advised him that it showed anterolisthesis of the L4 and L5 discs. Mr. Hollingsworth relayed
to Dr. Figueora that he did not know what caused his condition but believed that it might be from
bouncing around while driving his truck.

        On June 14, 2011, Mr. Hollingsworth filed an application for workers’ compensation for
his injury that allegedly occurred on April 22, 2011. In his application, Mr. Hollingsworth
asserted that he hurt his lower back while reaching for a tarp inside of a dumpster. During his
deposition, Mr. Hollingsworth asserted that his injury was a result of stepping into a dumpster
with uneven ground. Mr. Hollingsworth asserted that when he stepped onto the uneven ground
he felt a pinching sensation in his lower back, which precipitated his lower back and leg
problems.

        The Office of Judges concluded that Mr. Hollingsworth failed to prove by a
preponderance of the evidence that he sustained an injury in the course of and resulting from his
employment. The Office of Judges noted that Mr. Hollingsworth’s representations were both
uncorroborated and contained too many contradictions to meet his burden of proof. The Office of
Judges also pointed out that Mr. Hollingsworth had some pre-existing low back problems
indicated by an MRI, which showed degenerative changes and disc space narrowing of the L4-5
disc. The Board of Review adopted the findings of the Office of Judges and affirmed its Order.

        We agree with the conclusions of the Board of Review and the findings of the Office of
Judges. Mr. Hollingsworth did not present sufficient credible evidence to demonstrate that he
sustained an injury to his lower back and leg in the course of and resulting from his employment.
The only evidence that tends to show this injury occurred in the course of and as a result of his
employment is his own testimony, which the Office of Judges determined was not credible. Mr.
Hollingsworth’s testimony is insufficient to support his application for workers’ compensation
benefits because of the contradictions in the record and the failure to report his accident in a
timely fashion.

        For the foregoing reasons, we find that the decision of the Board of Review is not in clear
violation of any constitutional or statutory provision, nor is it clearly the result of erroneous
conclusions of law, nor is it based upon a material misstatement or mischaracterization of the
evidentiary record. Therefore, the decision of the Board of Review is affirmed.

                                                                                Affirmed.

ISSUED: June 27, 2014

CONCURRED IN BY:
Chief Justice Robin J. Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
                                                2
Justice Menis E. Ketchum

Justice Allen H. Loughry II

                               3


628 S.E.2d 104 (2006)
280 Ga. 376
FORTSON
v.
The STATE.
No. S05A1559.
Supreme Court of Georgia.
March 27, 2006.
Reconsideration Denied April 13, 2006.
*105 Tracy Lea Fortson, Pro Se.
Robert W. Lavender, Dist. Atty., Thurbert E. Baker, Atty. Gen., Jason Charles Fisher, Asst. Atty. Gen., for appellee.
HINES, Justice.
Tracy Lea Fortson appeals her convictions for malice murder and attempted arson in connection with the death of Douglas Benton. For the reasons that follow, we affirm.[1]
1. Fortson contends that the State presented only circumstantial evidence that did not exclude all reasonable hypotheses except that of her guilt. See OCGA § 24-4-6.
[Q]uestions as to the reasonableness of hypotheses are generally to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, that finding will not be disturbed unless the verdict of guilty is insupportable as a matter of law. [Cit.]
Robbins v. State, 269 Ga. 500, 501(1), 499 S.E.2d 323 (1998).
Construed to support the verdicts, the evidence showed that Benton and Fortson had a romantic relationship that was "rocky." Benton was last seen by his neighbors on June 4, 2000. Fortson was seen at Benton's house that same day; she and Benton had been having difficulties in their relationship in the weeks before June 4, and had a serious argument on or about that date. On June 17, 2000, Benton's neighbors became concerned about his well-being; it appeared that exotic birds that he kept at his home had not been cared for. Law enforcement officers were called, entered Benton's home to ensure that he was not inside and in need of assistance, and exited when it was determined he was not there. The officers treated Benton's disappearance as a missing person case.
On June 19, 2000, Benton's body was found on a cattle farm and game preserve in Oglethorpe County; Fortson had access to and knowledge of the farm from hunting there.[2] The body was wrapped in two shower curtains; the shower curtain from Benton's bathroom was missing, and on June 4, 2000, Fortson purchased a shower curtain. In addition to being wrapped in the shower curtains, Benton's body was encased in concrete in a horse feeding trough; the trough had been painted in a camouflage pattern and placed in an obscure location on the farm. On June 4, 2000, Fortson had also purchased a horse feeding trough and ten 80-pound bags of concrete mix.[3] Samples of paint from spray paint cans found at Fortson's residence matched the composition of the paint on the trough. Recent scar marks on trees at the site where the trough was found matched marks on Fortson's pickup truck. Concrete in the bed of her truck had the same geologic origin as that in which Benton's body was encased.
Physical evidence showed that Benton had been shot in the head while he lay on his *106 couch. Forston possessed ammunition of the same type as the fatal bullet, and a rifle that could have fired it.[4]
Early in June 2000, Benton's vehicle was left at the residence of a friend; a note, purportedly signed by Benton, was affixed to the windshield. The handwritten note stated that Benton would be out of town for a while and asked his friend to take care of his truck; the note also asked the friend to try to hide the truck, not to try to call Benton, and "don't say anything to nobody." The friend had "really never looked" at Benton's handwriting before. An expert witness opined that the note had been written by Fortson. The note was taped to the windshield with special tape of the type used to lift latent fingerprints; Fortson had been issued such tape when she was employed as a deputy sheriff. The tape showed that it had been handled by someone wearing latex gloves, and a bloodstained fingerprint inside Benton's home also showed evidence of having been made by one wearing latex gloves. Latex gloves were found in Fortson's home.
At trial, Fortson testified that Benton had been involved in the prosecution of a drug dealer, and that she had told police officers investigating his death that fact. However, one of the investigators she named testified in rebuttal that she had not discussed with him any alleged role of Benton's in the drug dealer's prosecution. The investigator also testified that to his knowledge Benton had no role in that prosecution.
After Benton's body was found, there was an attempt to burn his house, apparently to hide evidence of the murder. On June 17, 2000, police officers first entered Benton's house. The next day, June 18, officers spoke with Fortson, and discussed the turbulent nature of her relationship with Benton. The next day, June 19, Benton's body was found, and officers again entered Benton's home, this time encountering the strong odor of kerosene and finding signs of an attempted arson; there had been no such odor two days before. The officers saw evidence that someone had attempted to clean bloodstains from the couch; the couch and adjacent carpet had been soaked with kerosene. Lit candles had been placed on the couch and carpet; the couch was the exact locale of the shooting.[5] The evidence showed that the attempted arson was inextricably linked to the murder, and the jury was authorized to find beyond a reasonable doubt that Fortson was guilty of malice murder and attempted arson, see Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and to exclude all reasonable hypotheses save that of her guilt. Robbins, supra.
2. Fortson objected to the admission into evidence of two handwritten documents she had penned, contending that their prejudicial impact outweighed their probative value. The documents were introduced by the State as exemplars of her writing, and it is undisputed that they formed a basis for expert testimony that Fortson was the person who wrote the note left on Benton's vehicle. One document, a written prayer, spoke of her love for Benton and asked for "strength to control my anger, my rage, my jealousy." The other, apparently an unaddressed note, stated "I know you like to try to figure me out, trying to see what makes me tick . . . the problem is I don't know what makes me do the things I do. . . ."
Evidence that is relevant and material to an issue in a case is not rendered inadmissible merely because it incidentally places the defendant's character in issue. Reed v. State, 279 Ga. 81, 83(3), 610 S.E.2d 35 (2005). This principle applies to handwriting samples as well as other types of evidence. See Ingram v. State, 253 Ga. 622, 637(18)(a), 323 S.E.2d 801 (1984). The admission of relevant evidence that is challenged on the basis that its probative value is outweighed by its prejudicial impact is within the sound discretion of the trial court. See Carroll v. State, 261 Ga. 553, 554(2), 408 S.E.2d 412 (1991). The authorship of the note placed on Benton's vehicle was material to the jury's determination of guilt in this case.[6] The trial *107 court did not abuse its discretion in determining that any prejudicial impact of a religious prayer asking for strength, and an expression of uncertainty as to what "makes me tick," did not outweigh the probative value of the evidence.
3. Although originally represented by counsel in this Court, on March 9, 2006, Fortson pro se filed an untimely supplemental enumeration of error; this filing will not be considered. Smith v. State, 267 Ga. 372, 378(12), 477 S.E.2d 827 (1996).
Judgments affirmed.
All the Justices concur.
NOTES
[1]  Benton was killed on or about June 4, 2000. On October 18, 2000, a Madison County grand jury indicted Fortson for malice murder, felony murder while in the commission of aggravated assault by shooting Benton, aggravated assault by shooting Benton, aggravated assault by stabbing Benton, and attempted arson. Fortson was found guilty of all charges, but her convictions were reversed in Fortson v. State, 277 Ga. 164, 587 S.E.2d 39 (2003). After a change of venue, Fortson was tried before a jury in Effingham County March 22-25, 2004, and found guilty of malice murder, felony murder in the commission of aggravated assault by shooting Benton, aggravated assault by shooting Benton, and attempted arson; she was found not guilty of aggravated assault by stabbing Benton. On April 5, 2004, Fortson was sentenced to life in prison for malice murder, and a consecutive term of ten years in prison for attempted arson; the aggravated assault merged with the malice murder conviction, and the felony murder stood vacated by operation of law. See Malcolm v. State, 263 Ga. 369, 372-374(4), (5), 434 S.E.2d 479 (1993). Fortson moved for a new trial on April 20, 2004, and amended her motion on September 9, 2004. The trial court denied the motion on April 14, 2005. Fortson filed her notice of appeal on May 16, 2005; the appeal was docketed in this Court on June 19, 2005, and argued before this Court on September 7, 2005.
[2]  Fortson had also served as an Oglethorpe County deputy sheriff.
[3]  At trial, Fortson testified that the next day the trough and concrete mix were missing from her carport; she did not report them stolen to police.
[4]  The bullet was too distorted to allow any definitive match.
[5]  The candles failed to ignite the kerosene.
[6]  Fortson presented an expert witness who opined that the note found on Benton's truck was written by him, and not by Fortson.