Opinion issued February 7, 2013

                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                          ————————————
                             NO. 01-11-00606-CV
                          ———————————
      ABRAHAM MELAWER AND DONALD CAHILLY, Appellants
                                       V.
              TOTAL AIRCRAFT SERVICES, INC., Appellee

             On Appeal from County Civil Court at Law No. 2
                          Harris County, Texas
                     Trial Court Case No. 930,447

                      MEMORANDUM OPINION

     The primary issue in this appeal is the validity of a $25,000 sanctions order.

We affirm.
                                  Background

      In December 2008, Abraham Melawer sued appellee Total Aircraft Services,

Inc. for a declaratory judgment to invalidate a $1,737.90 mechanics lien on

Melawer’s airplane for repairs Total claimed it performed in November 2003.

Total answered in March 2009 and filed a counterclaim for breach of contract for

$1737.90.

      After a bench trial, Total sought $75,000 in sanctions against Melawer and

his lawyer, appellant Donald Cahilly, to compensate Total for attorney’s fees for

what it claimed was a frivolous lawsuit and Melawer’s perjury. Total argued that

Melawer had created a false alibi at trial: the airplane had been chartered and was

in Baton Rouge from November 5 to 10, 2003, and Total could not have worked on

it during that time. At the sanctions hearing, Total’s counsel argued to the trial

court as follows:

             The reason they had to know that this lawsuit was frivolous was
      in the Bonometti trial, B-O-N-O-M-E-T-T-I, Mr. Melawer gave a
      deposition. The lawyer appearing on behalf of Mr. Melawer was Don
      Cahilly. The main issue or one of the main issues in that case was the
      use of the aircraft, “What were you doing with this aircraft?” And on
      page 6 of our motion, we go through all of the evidence that Mr.
      Melawer testifies to saying that he never used that aircraft to fly
      charter flights. He positively asserts that whenever he flew a charter
      aircraft, he always flew his customer’s airplane, never this aircraft.
      Point after point after point, that is inconsistent with Mr. Melawer’s
      alibi.
             Mr. Melawer, in the earlier version of this lawsuit in Randy
      Wilson’s court, testified that he last worked on the plane in
      November. That was his testimony then. Mr. Herbert [counsel for
                                        2
      Total] impeached him on that point. So, when talking about what is a
      frivolous lawsuit, a frivolous lawsuit is one which the rules define as
      one having no basis in law or fact. The fact in this issue, in this
      lawsuit, that was in dispute was the fact of whether we did the repairs
      on November 6th, 2003. And the only way Mr. Melawer was able to
      survive summary judgment was by refusing to call the FAA to find
      out when we filed the lien until the day of trial when we were told that
      they were going to stipulate to that, and by manufacturing evidence to
      suggest that there was a fact issue as to when this aircraft was flown.
      And that evidence that was manufactured was the affidavit that was
      attached to a response in the summary judgment motions that were
      filed.

The trial court summarized its concerns to Cahilly at the hearing as follows:

              So, that’s where I’m at. I don’t know if you [Cahilly] directly
      participated in it. But you represented Mr. Melawer in the other case.
      You knew that the testimony and that these attorneys were under the
      impression this was not a charter plane so why would they be asking
      for, in defense of this suit, charter information if you’ve already
      testified it was never used for charters. Well, guess what? The alibi
      said it was chartered. That’s the kind of thing that makes people get a
      little nuts in law because there are certain things that should be
      absolutely. They should be black and white.
              ...
              And so, given that, I don’t know if you [Cahilly] were
      compliant in it or not. I don’t know because I don’t know your
      relationship with your client. And I’m not delving into that. I’m
      looking at, as a whole, if Mr. Melawer misrepresented to you that the
      work wasn’t done and he knew it was done and he didn’t put the
      sticker in the logbook, then that’s Mr. Melawer’s problem and he is
      abusing my court. And he is abusing the court systems of the United
      States and especially the State of Texas. And he is wasting time
      where other cases should be tried. And he just wanted to get out -- he
      just didn’t want to pay him [Total] because he was mad at him. And
      he wanted to use the court system to punish him. And that’s not what
      these are for. These are for genuine disputes. And I find that the
      work was done and he knew it was done.
              MR. CAHILLY: I take your judgment. I accept the judgment,
      but -- and this is where I run into a conflict with my client is I don’t
                                         3
believe that I did anything improper in any way in this case. And, you
know, if we need to have a trial on that issue, we can have a trial on
that issue, but, you know, I guess I want to --
        THE COURT: I don’t want to have a trial on that issue. I think
it is between you and your client if I award sanctions. And you can
have your confidential conversation with your client about what needs
to happen. And if it doesn’t get resolved, then you can bring whatever
you need to bring and properly allocated at a later date. Because I am
not going to get into your attorney-client relationship at this point in
time because I’m going to give you an opportunity to work that out
with your client. Whether or not I award sanctions, though, I am --
like I said, I do think there was perjury committed in my Court. And I
do think it was -- that part of it, I think was intentional, and that part
warrants sanctions.

On January 31, 2011, the trial court signed three documents:

      • First, a final judgment (a) awarding Total $1,737.90 from Melawer

with prejudgment interest, (b) declaring that Total’s lien was valid, (c)

ordering Melawer to pay Total $35,000.00 in attorney’s fees pursuant to

Civil Practice and Remedies Code chapter 38, (d) awarding Total

$25,000.00 in sanctions from Cahilly and Melawer, jointly and severally,

and (e) postjudgment interest on all amounts.

      • Second, a twelve-page sanctions order awarding Total $25,000.00 in

sanctions from Cahilly and Melawer, jointly and severally for each of the

following: (a) $25,000.00 as sanctions for violations of Texas Rule of Civil

Procedure 13 and Civil Practice and Remedies Code chapter 10 for, inter

alia, filing frivolous pleadings and perjured documents; (b) $25,000.00 as

sanctions for violations of Texas Rule of Civil Procedure 215 for discovery
                                    4
      abuse by both Cahilly and Melawer; (c) and $25,000.00 as sanctions for

      violations of Texas Rule of Civil Procedure 166a(h) for making false

      affidavits and fabricating records. The sanctions order further found that

      sanctions were “justified based on the totality of the violations it finds were

      committed by Messrs. Cahilly and Melawer. These abuses were not isolated

      or accidental, but willful, deliberate and calculated, all in an attempt to

      perpetrate a fraud on this Court and to extract a benefit from [Total]: the

      release of its valid lien without paying for the repairs [Total] performed on

      the Aircraft.” The trial court nonetheless ordered that Total “is entitled to

      recover one sanction in the total amount of $25,000.00, against Messrs.

      Cahilly and Melawer, jointly and severally.”

             • Third, a nine-page findings of fact and conclusions of law.

Prior to the expiration of its plenary power, the trial court signed a revised final

judgment on April 14, 2011, which recited the provisions of the January 31, 2011

judgment and added an award of appellate attorney’s fees.

      On May 20, 2011 Melawer filed a motion for new trial in which he argued:

(1) any sanctions based on the original lawsuit—that the lien was invalid for failure

to give the name and address of the owner of the aircraft—was not frivolous when

made and consequently any sanctions based on the original allegation should be

reconsidered; (2) Total’s “counterclaim” for breach of contract was barred by

                                         5
limitations and Civil Practice and Remedies Code section 16.069 does not apply to

allow the “counterclaim” to be filed, thus the $1,737.90 breach-of-contract award

and the $35,000.00 in attorney’s fees should be set aside; and (3) sanctions should

not be awarded “simply because [the trial court] finds one side’s proof more

persuasive than the other side’s.” On May 16, 2012, Cahilly filed a motion for

new trial in which he argued that it was error to award sanctions because: (1) no

sanctionable conduct took place; (2) the sanction was not directly related to the

offensive conduct; (3) the sanctions awarded will not secure the parties’

compliance with the rules, punish violators, and deter others; (4) the sanction

awarded was excessive and more severe than necessary; (5) no nexus exists

between the conduct, offender, and sanction; (6) the sanction is arbitrary,

capricious, and without regard to guiding law; (7) the sanction penalizes filing a

lawsuit and properly representing a client; (8) the sanction is not supported by the

evidence; and (9) there was no abuse of the rules of discovery, filing of documents,

or pleading. Neither Melawer nor Cahilly specifically challenged in the trial court

the three independent $25,000.00 bases for the one unitary $25,000 sanction, and

neither Melawer nor Cahilly objected below to the joint-and-several nature of the

sanction. Both Melawer and Cahilly filed timely notices of appeal.

                                         6
                                        Discussion

Melawer’s appeal

         Melawer brings two issues: (1) the trial court erred in imposing a $25,000

sanction on him because a trial court cannot impose sanctions when the basic facts

are in dispute and (2) Total’s “counterclaim” is barred by limitations. In his first

issue, Melawer does not specifically does not challenge the sufficiency of the trial

court’s findings of fact.       Rather, he argues that the common law bars the

imposition of sanctions based on disputed facts when the evidence allows a

fact-finder more than one “permissible view.”            Melawer grounds this policy

argument in appellate-opinion statements that “undisputed evidence” was

presented in the trial court or that parties relied on allegations outside their

personal knowledge. See, e.g., Low v. Henry, 221 S.W.3d 609, 617 (Tex. 2007);

Keith v. Keith, 221 S.W.3d 156, 167 (Tex. App.—Houston [1st Dist.] 2006, no

pet.).

         Melawer’s policy argument contends that lawyers and their clients should

not be subject to sanctions merely because the fact-finder finds against them. But

he is also candid with this Court in arguing the basis for the sanction:

                It is true that the sanctions did not exclusively rest on Judge
         Smith’s credibility determinations. She faulted Mr. Melawer for
         withholding the flight log and charter records that had been requested
         in discovery and for wrongfully arguing that such documents were
         irrelevant. And she justified sanctions in part because Mr. Melawer
         did not reveal its alibi defense in answers to interrogatories or requests
                                             7
      for admissions even though the discovery requests clearly and
      properly called for disclosure of this information. Rather, Melawer
      revealed the alibi defense for the first time at trial.
            Undoubtedly, sanctions can be imposed on parties who do not
      comply with discovery obligations. To the extent Mr. Melawer did
      not do so, Judge Smith might have found some sanctions in order.

(Record citations omitted).

      Without deciding the legal issue of whether sanctions can be imposed on

disputed facts when the evidence allows a fact-finder more than one “permissible

view,” we note that the trial court made 24 findings and conclusions to support its

$25,000 sanction under Texas Rule of Civil Procedure 215, which addresses

discovery sanctions. But even if Melawer had challenged the sufficiency of all of

those findings, there is nonetheless sufficient evidence—for example, Melawer’s

August 2008 and September 2009 affidavits asserting that Total performed no

maintenance or repair on the airplane after October 23, 2003 versus Melawer’s

November 2007 deposition testimony in a related case that Total worked on the

airplane in November 2003—from which the trial could have concluded that no

legitimate fact question existed concerning whether Total did the repairs on

November 6, 2003.

      To be successful, an appellant must challenge every independent basis on

which the trial court’s judgment can be sustained. See Cincinnati Life Ins. Co., v.

Cates, 927 S.W.2d 623, 625 (Tex. 1996) (discussing summary judgment motion

granted on multiple, independent grounds). Considering (1) the lengthy findings
                                        8
made by the trial court in both the sanctions order and the formal findings of fact

and conclusions of law and (2) the independent grounds for imposition of the

$25,000 sanction, Melawer has not demonstrated reversible error based on the

sanction. Accordingly, we overrule his first issue.

      In his second issue, Melawer contends that Total’s “counterclaim” is barred

by limitations. We acknowledge there appears to be a split of authority on the

issue of whether an underlying breach-of-contract claim is properly characterized

as a counterclaim to an action to declare a lien invalid for the purpose of extending

limitations under Civil Practice and Remedies Code section 16.069. Compare

Wright v. Matthews, 26 S.W.3d 575, 577–78 (Tex. App.—Beaumont 2000, pet.

denied) (holding limitations-barred breach-of-contract claim was not counterclaim

to action to quiet title under section 16.069) with Briargrove Park Prop. Owners,

Inc. v. Riner, 867 S.W.2d 58, 62–63 (Tex. App.—Texarkana 1993, pet. denied)

(stating there was “no dispute” that limitations-barred breach-of-contract claim was

not counterclaim to action to quiet title under section 16.069); TEX. CIV. PRAC. &

REM. CODE ANN. § 16.069 (West 2008).

      Melawer, however, did not obtain a ruling from the trial court on his

limitations defense until his motion for new trial was denied. Nor does Melawer

show on appeal where he introduced evidence on this affirmative defense that it

was his burden to prove. Melawer argues that Total’s claim “would be undeniably

                                         9
barred by limitations if Total [] had been the plaintiff.”       Had proof of the

affirmative defense been introduced and a ruling requested, that might have been

correct, but here no such assertion of limitations was made. A postjudgment

motion is not a timely objection to the lack of a necessary finding of fact on which

evidence is required. See Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex.

1999). We therefore hold that Melawer waived this issue by proceeding to trial

without a ruling on his limitations defense.

      We overrule Melawer’s second issue.

Cahilly’s appeal

      Cahilly argues that the trial court erred in imposing a $25,000 sanction under

(1) Texas Rule of Civil Procedure 13 and Civil Practice and Remedies Code

chapter 10, (2) Rule 215, and (3) Rule 166a(h). He does not specifically challenge

the evidentiary sufficiency of the court’s findings in either the sanctions order or

findings of fact and conclusions of law. Rather, he argues generally that the trial

court improperly applied the law regarding sanctions and that by not securing a

pretrial hearing and ruling, Total waived its claim for sanctions. See Remmington

Arms Co. v. Caldwell, 850 S.W.2d 167, 170 (Tex. 1993).

      We first note that Total disputes it was possible to secure a pretrial hearing

and ruling on sanctions, as the plane-was-in-Baton-Rouge “alibi” arose at trial.

See id. (holding that posttrial sanctions for discovery abuse revealed for first time

                                         10
at trial is not waived). Regardless of whether Total could have raised sanctions

before trial, Cahilly did not timely object to the post-trial sanctions proceedings

and this allegation of error has not been preserved. See TEX. R. APP. P. 33.1(a).

      Moreover, Cahilly never challenges the joint-and-several liability for the

$25,000 sanction award, either in this Court or below. As such, we need not

decide whether the trial court properly attributed improper actions of Melawer to

Cahilly to justify its sanctions award, and hold that Cahilly is independently liable,

jointly and severally, based on Melawer’s conduct. Cahilly’s issues are moot, and

we dismiss them.

                                    Conclusion

      We affirm the trial court’s judgment.

                                              Jim Sharp
                                              Justice

Panel consists of Justices Jennings, Higley, and Sharp.

                                         11


116 F.3d 471
Michael E. Weisberg, Home Insurance Companyv.Michael E. Weisberg, Esq., Michael E. Weisberg, P.C., DoreenDavis Quinn, Delores DePrinzio, Georgette Murray,Denise J. Trager, Alex Trager, (Three Cases)
NOS. 96-1539, 96-1579, 96-1580
United States Court of Appeals,Third Circuit.
May 22, 1997

Appeal From:  E.D.Pa. ,No.95-07750 ,
Fullam, J.

1
Affirmed.


United States Court of Appeals
         For the Eighth Circuit
     ___________________________

             No. 13-2379
     ___________________________

                  Todd Karlen

     lllllllllllllllllllll Plaintiff - Appellee

                        v.

     Jones Lang LaSalle Americas, Inc.

   lllllllllllllllllllll Defendant - Appellant
      ___________________________

             No. 13-2835
     ___________________________

                  Todd Karlen

    lllllllllllllllllllll Plaintiff - Appellant

                        v.

     Jones Lang LaSalle Americas, Inc.

    lllllllllllllllllllll Defendant - Appellee
                   ____________

  Appeal from United States District Court
 for the District of Minnesota - Minneapolis
                ____________
                            Submitted: March 12, 2014
                             Filed: September 9, 2014
                                  ____________

Before COLLOTON, SHEPHERD, and KELLY, Circuit Judges.
                         ____________

KELLY, Circuit Judge.

      Following his termination from Jones Lang Lasalle, Americas, Inc., (JLLA),
Todd Karlen sued JLLA for, inter alia, failure to pay him a commission on a deal that
closed shortly after his departure. JLLA moved for summary judgment, and Karlen
responded. The district court sua sponte granted summary judgment for Karlen and
held that JLLA had wrongfully withheld commission payments; the district court
consequently awarded Karlen the amount of the commission as well as statutory
penalties for late payment under Minn. Stat. §§ 181.03, 181.13, and attorney’s fees
and costs under Minn. Stat. § 181.171. JLLA appeals the district court’s order that
it owed Karlen both a commission and statutory penalties. Karlen appeals the district
court’s reduction of his requested attorney’s fees. Having jurisdiction under 28
U.S.C. § 1291, we reverse the district court’s order granting summary judgment for
Karlen and vacate the resulting award of attorney’s fees and costs.

                                  I. Background

       From May 2010 until January 2012, Karlen was employed as a leasing
specialist for JLLA, a commercial real estate company. Karlen acted as a broker,
locating and securing retail tenants for JLLA’s clients. Karlen’s original
compensation structure consisted of an annual salary of $75,000 with the opportunity
to earn an annual end-of-year bonus based on performance. In January 2012, JLLA
changed its compensation structure for all employees to a salary plus commissions.
Karlen’s base salary was lowered to $60,000, but he had the opportunity to earn “up

                                         -2-
to 30% of the leasing revenue” that he directly generated starting January 1, 2012.
Karlen was also eligible to receive up to a 10% commission on leases secured by
other sales representatives in his assigned territory.

       Shortly after the compensation change, on January 31, 2012, Karlen was
terminated for performance reasons. JLLA notes that from 2010 through the end of
2011, Karlen was consistently rated a low performer. At the time of his termination,
Karlen was in the process of completing a lease deal with a tenant, Primebar: all
substantive negotiations had been completed, and the final lease had been sent to
Primebar for its signature. Karlen estimated that his 30% commission on the
Primebar deal would have been worth $37,616.90. Primebar executed the proposed
final lease on February 3—three days after Karlen was terminated.

       Karlen contacted JLLA several times and demanded his commission on the
Primebar transaction. JLLA maintained that while Karlen was not entitled to the
commission following termination, JLLA was willing to pay the Primebar
commission and possibly other commissions based on a protection list1 of former
clients, should those transactions occur within a certain period of time after
termination. Both parties agree this is standard industry practice. On February 20,
2012, Karlen sent JLLA a protection list of the clients he had been working with and
noted that he “expect[ed] to receive commissions on leases closed in the next 90
days.” The only client on the list to have closed a transaction within the 90-day
period was Primebar.

      1
       According to the parties, it is common in the industry for a company and a
terminated broker to develop and agree to a protection list of clients whose accounts
the broker had been working on prior to termination. If any deal is completed with
a client on the protection list within a certain amount of time following the
termination, the terminated broker still receives some commission on the transaction.

                                         -3-
       On April 9, 2012, Karlen filed suit in Minnesota state court claiming to be
owed a commission on the Primebar lease, as well as other commissions, a bonus for
2011, and reimbursement of certain business expenses. On May 5, 2012, JLLA
removed the case to federal court.2 After the start of the litigation, JLLA sent Karlen
three checks representing 30% of the revenues JLLA received from the Primebar
lease. The checks were dated May 4, 2012, June 1, 2012, and October 5, 2012.
Karlen did not cash these checks. Instead, he contacted JLLA. JLLA informed
Karlen that it would consider cashing the checks to be a settlement of any additional
claims for more money from the Primebar lease. Karlen consequently returned the
checks to JLLA.

       Following extended discovery, JLLA moved for summary judgment on all
claims. On May 23, 2013, the district court held a hearing on JLLA’s motion and
granted JLLA summary judgment on all claims except the Primebar commission. The
district court, acting sua sponte, then granted summary judgment to Karlen on the
remaining claim regarding the Primebar commission, concluding JLLA breached its
contract with Karlen. The district court found JLLA owed Karlen a commission on
the Primebar deal. The court also found that, by attaching conditions to the cashing
of the commission checks, JLLA had “altered the method or procedures for payment”
and thus committed “a violation of the applicable Minnesota statutes.” The district
court thus awarded Karlen $69,042 under Minn. Stat. § 181.03, double the Primebar
commission value of $34,521. The district court also held that Karlen was entitled
to average daily earnings for 15 days—$3,461.54—under Minn. Stat. § 181.13 for
JLLA’s failure to pay wages promptly. Finally, the district court ordered JLLA “to
pay reasonable costs, disbursements, witness fees, and attorney fees” as required by
Minn. Stat. § 181.171, which the court announced it would address in a separate
order.

      2
      Karlen is a citizen of Minnesota and claims damages in excess of $120,000.
JLLA is a Maryland corporation with its principal place of business in Illinois.

                                         -4-
       Karlen then submitted his costs and attorney’s fees to the district court. Karlen
sought $2,018.22 in costs and $48,548.31 in attorney’s fees. Finding the legal issues
were “not particularly significant or complex” and that “[s]uccessful prosecution of
this claim did not necessitate significant amounts of time, discovery or legal skill,”
the district court awarded $20,000 in attorney’s fees and $2,018.22 in costs.

       JLLA appeals the district court’s order awarding Karlen both a commission and
statutory penalties. Karlen appeals the district court’s award of attorney’s fees.

                                   II. Discussion.

       “We review de novo the district court’s grant of summary judgment, viewing
the evidence and the inferences that may be reasonably drawn from the evidence in
the light most favorable to the nonmoving party.” Petroski v. H&R Block Enters.,
LLC, 750 F.3d 976, 978 (8th Cir. 2014). Summary judgment is appropriate where the
“movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

       JLLA argues that the district court erred in awarding a commission, wages, and
statutory late payment penalties under Minn. Stat. §§ 181.03 and 181.13. We agree
for two reasons: (1) JLLA did not owe Karlen a commission payment at the time of
termination because commission payments were subject to at least two conditions
precedent that had not yet been fulfilled; and (2) even if JLLA did eventually owe
Karlen a commission (either under the employment contract or due to some other
theory), any such amount would not have been owed until after termination, and
therefore, Minn. Stat. §§ 181.03 and 181.13 do not apply.

                                          -5-
                     A. Commissions and Statutory Penalties

        The Minnesota Payment of Wages Act provides statutory protection for the
payment of wages and commissions owed to employees whose employment is
terminated by their employers. Minn. Stat. §§ 181.01–.171. Minnesota law requires
that “an employer . . . not alter the method of payment, timing of payment, or
procedures for payment of commissions earned through the last day of employment
. . . .” Minn. Stat. § 181.03 (emphasis added). Any employer “who violates this
section is liable . . . for twice the amount in dispute.” Id. Minnesota further provides
that “[w]hen any employer employing labor within this state discharges an employee,
the wages or commissions actually earned and unpaid at the time of the discharge are
immediately due and payable upon demand of the employee.” Minn. Stat. § 181.13
(emphasis added). If the employer fails to pay the wages and commissions owed
“within 24 hours after demand, . . . the employer is in default.” Id. For each day the
employer is in default, the employee is entitled to another day of compensation, based
on his average daily earnings, up to 15 days. Id.

       We have found that Minn. Stat. § 181.13 “‘is a timing statute, mandating not
what an employer must pay a discharged employee, but when an employer must pay
a discharged employee.’” Knutson v. Schwan’s Home Serv., Inc., 711 F.3d 911, 917
(8th Cir. 2013) (quoting Caldas v. Affordable Granite & Stone, Inc., 820 N.W.2d 826,
837 (Minn. 2012)). “The employment contract governs whether wages were ‘actually
earned and unpaid’ for purposes of Minn. Stat. § 181.13.” Chambers v. Travelers
Co., 668 F.3d 559, 566 (8th Cir. 2012) (citing Lee v. Fresensius Med. Care, Inc., 741
N.W.2d 117, 127–28 (Minn. 2007)). Section 181.13 only applies if an employer
owes an employee unpaid wages or commissions under the employment contract.
Because Minn. Stat. § 181.13 creates a civil penalty, it must be strictly construed.
Lee, 741 N.W.2d at 125–26 (interpreting Minn. Stat. § 181.13).

                                          -6-
      Section 181.03, similar to § 181.13, does not determine what an employer
owes. The employment contract, not the statute, determines what commissions have
been “earned through the last day of employment.” Minn. Stat. § 181.03.
Section 181.03 also provides for a penalty by allowing the recovery of double the
commissions owed if an employer “alter[s] the method of payment, timing of
payment, or procedures for payment of commissions.” See Minn. Stat. § 181.03, sub.
3. Thus, like § 181.13, § 181.03 must be strictly construed. Cf. Lee, 741 N.W.2d at
125–26.

       Therefore, “[t]o recover under [either] statute, the employee must establish an
independent substantive legal right, separate and distinct from [§§ 181.03 and 181.13]
to the particular wage claimed.” Caldas, 820 N.W.2d at 837 (interpreting Minn. Stat.
§ 181.13). The terms of the employment contract determine what wages and
commissions are “earned” and owing at the time of termination. Any such earnings
may be “subject to conditions specified in the contract.” Lee, 741 N.W.2d at 126.
Under the terms of the applicable statutes, therefore, JLLA is only subject to penalties
for failure to pay (or for altering the method of payment) if it owed Karlen a
commission on the Primebar deal at the time of his termination. See Minn. Stat.
§§ 181.03 and 181.13.

      We conclude that JLLA did not owe Karlen a commission on the Primebar deal
at the time of his termination. It is undisputed that the Primebar commission
payments were subject to at least two conditions precedent, neither of which had been
met at the time Karlen was terminated, and thus no commission had been “earned”
or was owing under the employment contract at the time of his termination.

       First, JLLA’s leasing agents only earn commissions on revenue JLLA actually
receives. Karlen agrees that the new compensation program was described to him in
a January 27, 2012, “Compensation Change” memo; and the parties do not dispute
that this memo was a part of the employment contract between JLLA and Karlen.

                                          -7-
This memo provided that agents will no longer have a target bonus but will instead
be eligible to earn “production based” commissions. Agents are “eligible for a
production based incentive which includes commission payments of up to 30% of the
leasing revenue you directly earn.” (Emphasis added.) If for some reason JLLA does
not receive revenue from its clients, then the agents would not be paid a commission.3
This means that agents must wait to receive commissions (and even to know if they
will receive a commission) until sometime after execution of a lease, when revenue
is received. JLLA structures its leases so it receives payment from the property
owners in two increments: one half of the payment owing immediately after a lease
is executed and the other half when the retail tenant opens for business. The time
period between when a lease is executed and when revenue is finally received may,
at times, be substantial. In this case, the first payment on the Primebar lease did not
arrive until May 2012, long after Karlen’s termination.

       Second, and perhaps more fundamentally, the Primebar lease was not executed
until after Karlen was terminated. JLLA argues that any contractual expectation
ended when Karlen was terminated.4 We agree that execution of the lease was a
critical condition to Karlen earning a commission. The Compensation Change memo
expressly states that “Commission payment amounts are dependent upon the type of
lease . . . and leasing agents involved in executing the deal.” (Emphasis added.)
Prior to termination, Karlen had, at most, an expectation of earning “up to 30%”

      3
       The Compensation Change memo describes the eligible commissions as being
“up to 30% of the leasing revenue you directly earn.” The agreement is not clear
whether the 30% is guaranteed on every transaction. We also note that the
Compensation Change memo suggests that commission payments would not be paid
prior to April 2012. It expressly states: “You will be eligible to receive the
commission payments beginning in April, subject to your recourse draw being
completely repaid.”
      4
       JLLA is careful to distinguish between contractual expectations prior to
termination and its willingness to pay Karlen based on some other equitable theory.

                                         -8-
commission should the Primebar lease be executed. This expectation lasted only as
long as Karlen was employed with JLLA. Because Karlen had not finalized the
Primebar lease prior to his termination, Karlen had no contractual entitlement to a
commission at the time of his termination.5 Thus, the failure of one or both of these
conditions precedent means that JLLA did not owe Karlen any payment at the time
of termination. As a result, JLLA did not breach its contract with Karlen such that
statutory late payment penalties were owing pursuant to Minn. Stat. §§ 181.03 and
181.13.

       Nevertheless, the district court found that JLLA owed Karlen a commission on
the Primebar lease, and held that JLLA had improperly attached conditions to those
payments thereby changing the method or terms of the payments. It is not entirely
clear from the record under what theory the district court concluded that JLLA owed
the commission; nor is it clear when exactly the commission was owed.6 But even
if JLLA eventually owed Karlen commission payments under a subsequent agreement
or under some other equitable theory, we do not believe that Minn. Stat. §§ 181.03
and 181.13 may be interpreted so broadly as to provide penalties for late payment of
commissions that were not owed under the employment contract prior to termination.
By their terms, these two statutory provisions are limited to providing penalties for
the delayed payment of amounts “earned through the last day of employment” and/or

      5
       We note this might be a different case had Karlen been terminated in bad faith
in an attempt to avoid paying a commission. However, at the summary judgment
hearing, Karlen conceded he was not terminated in bad faith.
      6
       JLLA maintains that the Primebar commission payments were not owed under
the employment contract, which terminated on January 31, 2012, but were instead
paid due to a later agreement made with Karlen following his termination. When
JLLA eventually received revenue, JLLA issued checks to Karlen for the commission
amounts. It is these payments that the district court held were insufficient, under
Minn. Stat. §§ 181.03 and 181.13, due to restrictions that JLLA purportedly placed
on cashing the checks.

                                         -9-
“actually earned and unpaid at the time of discharge.” Minn. Stat. §§ 181.03, 181.13.
No such amounts were owed at the time of Karlen’s discharge. As such, any amounts
later owed are outside the scope of the statutes. Therefore, we conclude as a matter
of law that Karlen was not owed either commissions or penalties based on a breach
of contract theory.

       In his appellate brief, Karlen admits that “[n]o agreement was ever reached
between Karlen and Appellant JLL[A] post-termination . . . .” This admission
forecloses his ability to proceed on remand under the theory that there was a post-
termination agreement that was breached. Karlen also has not appealed the dismissal
of his unjust enrichment and promissory estoppel claims. As such, JLLA is entitled
to summary judgment.

                                B. Attorney’s Fees

       Karlen appeals the district court’s order awarding attorney’s fees for a lesser
amount than requested. As explained, Karlen is no longer a prevailing party entitled
to attorney’s fees and costs under Minn. Stat. § 181.171. At oral argument, Karlen’s
counsel agreed his appeal would be moot if we failed to affirm the ruling on the
merits of the award. Given our reversal of the underlying award, we must also vacate
the later order awarding costs and attorney’s fees.

                                  III. Conclusion

       For the reasons stated above, we reverse the district court’s order granting
summary judgment in favor of Karlen on his breach of contract claim involving the
Primebar commission and vacate the district court’s order granting Karlen attorney’s
fees and costs.

                                        -10-
      JLLA’s brief on appeal acknowledges that after Karlen’s separation from
employment, the company agreed to pay Karlen a thirty-percent commission on the
Primebar deal. At oral argument, counsel for JLLA likewise advised the court that
Karlen is “entitled to a commission on the Primebar deal” of $34,521. The court
expects that JLLA will follow through on its representations.
                        ______________________________

                                      -11-


6 So.3d 64 (2009)
IN RE D.B.
D.W.B.
v.
DEPARTMENT OF CHILDREN AND FAMILY SERVICES.
No. 2D08-2260.
District Court of Appeal of Florida, Second District.
April 8, 2009.
Decision without published opinion. Affirmed.


               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 13a0604n.06

                                          No. 12-4065

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                  FILED
                                                                                Jun 26, 2013
UNITED STATES OF AMERICA,                          )                         DEBORAH S. HUNT, Clerk
                                                   )
       Plaintiff-Appellee,                         )
                                                   )       ON APPEAL FROM THE
v.                                                 )       UNITED STATES DISTRICT
                                                   )       COURT FOR THE SOUTHERN
DARNELL DUKES,                                     )       DISTRICT OF OHIO
                                                   )
       Defendant-Appellant.                        )
                                                   )

       BEFORE: GIBBONS and STRANCH, Circuit Judges; HOOD, District Judge.*

       PER CURIAM. Darnell Dukes, a federal prisoner, appeals through counsel the sentence

imposed on remand following the revocation of his supervised release.

       In 2004, Dukes pled guilty to and was convicted of being a felon in possession of

ammunition. He was sentenced to 85 months of imprisonment and three years of supervised release.

After Dukes completed his term of imprisonment and was released, his parole officer recommended

that his supervised release be revoked on the grounds that Dukes had been charged with a new crime

of indecent exposure and had failed to notify his parole officer of this fact. The district court

determined to take no action at that time. Dukes was then convicted of operating a vehicle while

impaired. Based on this violation, the district court modified the supervised release to include a

       *
       The Honorable Denise Page Hood, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 12-4065
United States v. Dukes

sixty-day substance abuse program. On March 15, 2012, the district court conducted a hearing on

revocation of the supervised release period based on the indecent-exposure and impaired-driving

charges above, plus new charges of gambling; failing to report these events to the parole officer;

testing positive for marijuana; and failing to complete the sixty-day substance abuse program. Dukes

admitted only to the conviction for operating a vehicle while impaired and the positive tests for

marijuana. The district court revoked supervised release and sentenced Dukes to seven months of

imprisonment and two years of supervised release. On appeal, this court remanded the matter to the

district court to state its reasons for imposing the sentence.

       A new sentencing hearing was held on September 5, 2012. Dukes objected to being

sentenced for operating a vehicle while impaired, contending that he had already been punished for

that violation by being ordered into the sixty-day substance abuse program. The court therefore

proceeded only on the charge of testing positive for marijuana, a Grade C violation with a sentencing

range of seven to fourteen months. Dukes had already served seven months at that point. Therefore,

the district court sentenced him to time served and two years of supervised release. Dukes again

appeals, arguing only that his sentence is substantively unreasonable.

       We review a sentence imposed on revocation of supervised release for reasonableness under

an abuse-of-discretion standard. United States v. Polihonki, 543 F.3d 318, 322 (6th Cir. 2008).

Because Dukes has already served the term of imprisonment imposed, any objection to the

reasonableness of that term is moot. See United States v. Brown, 639 F.3d 735, 736 (6th Cir. 2011);

United States v. Sandles, 469 F.3d 508, 518 (6th Cir. 2006). We find no abuse of discretion in the

imposition of a two-year period of supervised release. Dukes was clearly not ready to be released

                                                  -2-
No. 12-4065
United States v. Dukes

without supervision based on his history under supervision. Indeed, the district court’s docket sheet

indicates that he has since had his supervised release revoked again for committing new crimes of

disorderly conduct and criminal trespass and for testing positive for marijuana.

       Accordingly, we affirm the district court’s judgment.

                                                -3-


899 A.2d 998 (2006)
386 N.J. Super. 143
STATE of New Jersey, Plaintiff-Respondent,
v.
Ernest CARROLL, Defendant-Appellant.
Superior Court of New Jersey, Appellate Division.
Submitted March 7, 2006.
Decided June 12, 2006.
*999 Yvonne Smith Segars, Public Defender, attorney for appellant (Sylvia M. Orenstein, Assistant Deputy Public Defender, of counsel and on the brief).
Zulima V. Farber, Attorney General, attorney for respondent (Jeanne Screen, Deputy Attorney General, of counsel and on the brief).
Before Judges SKILLMAN, PAYNE, and SABATINO.
The opinion of the court was delivered by
SABATINO, J.S.C., temporarily assigned.
This appeal requires us to review an order sustaining an automobile search following a defendant's arrest, and the seizure *1000 of a plastic bag of narcotics found within the automobile. For reasons slightly different than those posited by the trial court, we uphold the search and seizure. Because defendant's challenge to the search and seizure is the sole basis for his appeal, we affirm his convictions for various offenses predicated on the fruits of that search.

I.
On the afternoon of August 15, 2004, Atlantic City Police Officer Frank Timek observed a brown Buick sedan parked in front of the Endicott Hotel. Officer Timek recognized the sedan driver as defendant Ernest Carroll from a photograph that he had been shown earlier that day by another officer, describing Carroll as a suspected new drug dealer in the area. Carroll had been apprehended for drug dealing twelve days before, on August 3, 2004, and was released.
Officer Timek observed defendant enter the hotel building empty-handed and emerge about ten minutes later carrying a bluish plastic bag. Defendant placed the bag on the passenger seat of the Buick and drove away.
After noticing, among other things, that the Buick lacked a license plate or registration tag and that its middle brake light was not working, Officer Timek pursued the Buick in his patrol car and activated his siren and emergency lights. The Buick did not stop. Officer Timek continued to follow the Buick, with another responding patrol car, driven by Officer Richard Lasko, following behind Officer Timek.
During the course of the pursuit, Officer Timek observed defendant attempt to push the plastic bag through the driver's side window. However, defendant was unsuccessful in discarding the bag, as it appeared to Officer Timek that the car window was not open wide enough for the bag to fit through. The officer observed that defendant was having difficulty operating the Buick and simultaneously trying to push the bag through the window.
Not heeding the police siren and lights, defendant drove through the city in a southerly direction at a speed between forty and fifty miles per hour, "jumped a curb," and headed east. Defendant then steered into a casino parking lot, where he crashed the Buick into a parked vehicle. He then ran out of the car, leaving the driver's door open and the plastic bag inside, and attempted to flee on foot.
Arriving at the parking lot at the same time as defendant, Officer Timek got out of the patrol car and stood in Carroll's path, shouting at him to turn around and put his hands up in the air. Carroll ignored these police commands, and instead took what Officer Timek described as "a combative stance," raising his hands and clenching his fists.
Officer Timek attempted to place defendant in custody. The two men struggled. Defendant grabbed Timek's shirt and managed to pull the officer, who was on top of him, into the front seat of the Buick. The struggle continued inside of the vehicle for about thirty to forty seconds. At this point Officer Lasko arrived in the second police car. With Lasko's help, Timek was able to handcuff defendant, pat him down for weapons and remove him from the Buick.
After defendant was removed from the Buick and standing, as Officer Timek estimated, about one car length from the vehicle, Officer Timek reached into the Buick. He retrieved the plastic bag, which the officer testified was in plain view on the floor by the front passenger seat. Suspecting that the bag contained a weapon or contraband, Officer Timek looked inside it. The officer found a large white rock, which he suspected was cocaine, wrapped in clear *1001 plastic, a digital scale, and several smaller plastic bags of the kind commonly used for distributing illegal drugs. The officer also retrieved from the Buick identification information and a key on the front seat. The police later determined that the Buick had been stolen about two hours before defendant was observed driving it.
According to Officer Timek's testimony at the suppression hearing, at that point "numerous units" of police cars, which were never quantified in the record, had arrived, along with an EMS unit. The EMS workers treated Officer Timek for a cut on his hand and also treated defendant for some facial injuries. Thereafter, defendant was placed in a patrol car and driven to police headquarters for processing. Officer Timek radioed a supervisor and advised him of the situation, and was then transported by Officer Lasko to the hospital.
Based upon these events, the police stationed a detective in the Endicott Hotel. Later that day, the police applied for a warrant to search a room in the hotel registered to a "Ronald and Tina Wilson," which was suspected to be a place where defendant had conducted drug transactions. Their suspicions were based not only upon the police chase and the seizure of the plastic bag of narcotics from the Buick earlier that day, but also upon other information, including defendant's recent arrest for drug dealing on August 3; the hotel desk clerk's observations of defendant carrying plastic bags out of the hotel and repeatedly coming in and out of the hotel; and defendant's use of a false name ("Ronald Wilson") to register a room at a different hotel.
When presented with an affidavit outlining these details, a municipal judge issued the requested search warrant that evening, finding that there was ample probable cause to justify the search. At about 11:00 p.m., the police executed the search warrant and found in the hotel room several white rocky substances later confirmed to be cocaine, other drug paraphernalia, and three photographs of defendant along with prescription medication in his name.
Defendant was subsequently indicted in Atlantic County on seven charges stemming from the events of August 14, 2004. The charged offenses included third-degree possession of a controlled dangerous substance (CDS), cocaine, in violation of N.J.S.A. 2C:35-10a(1); second-degree possession of at least one-half of an ounce of cocaine, in violation of N.J.S.A. 2C:35-5a(1) and -5b(2); second-degree possession of cocaine with intent to distribute it within 500 feet of a public housing facility, park or building, in violation of N.J.S.A. 2C-35-7.1; third-degree aggravated assault on a police officer (Officer Timek), in violation of N.J.S.A. 2C:12-1b(5); second-degree eluding police causing a risk of death or injury, in violation of N.J.S.A. 2C:29-2b; third-degree resisting arrest by use or threat of physical force against a police officer, in violation of N.J.S.A. 2C:29-2a(1); and third-degree receipt of stolen property, a Buick automobile, in violation of N.J.S.A. 2C:20-7. A separate indictment was issued charging defendant with third-degree possession of cocaine, in violation of N.J.S.A. 2C:35-10a(1), arising out of the conduct that led to defendant's prior arrest on August 3, 2004.
Defendant moved to suppress the State's evidence derived from the August 15, 2004 police chase, automobile search and hotel room search. On January 21, 2005, the trial court conducted a suppression hearing. The sole witnesses at the hearing were Officer Timek and James Brennan, the police detective who had procured the warrant for the hotel room search.
After hearing the police witnesses and considering the arguments of counsel, the *1002 motion judge denied the suppression motion. In his oral ruling, the motion judge found that the police officers' testimony was "palpably reasonable" and consistent. The court ruled that the police had a reasonable basis to stop the automobile and that defendant had shown a "particular resolve to avoid apprehension." The judge specifically found, among other things, that Officer Timek's observation of defendant attempting to push the plastic bag out of the Buick window, a point that defense counsel had probed on cross-examination, was credible. The court also found that the police had probable cause to arrest defendant in the casino parking lot, and that the police had used reasonable force in apprehending and in handcuffing defendant.
With specific regard to the seizure of the plastic bag from the stolen Buick, the trial court first determined that the seizure was justified under the automobile exception to the warrant requirement. Specifically, the motion judge found that the police had probable cause to believe that the vehicle contained contraband, that exigent circumstances were present, and that the police were justified in contemporaneously searching the vehicle at the scene and seizing the plastic bag.
Alternatively, the motion judge found that the warrantless search of the vehicle also could be constitutionally sustained as a search incident to an arrest. The motion judge distinguished the facts here from those described in the Appellate Division's then-unreviewed opinion in State v. Eckel, 374 N.J.Super. 91, 863 A.2d 1044 (App.Div.2004), aff'd, 185 N.J. 523, 888 A.2d 1266 (2006). The judge noted that, given the defendant's "zeal" and "vigor" with which defendant attempted to flee, coupled with the fact that the Buick's door had been left open after the struggle with Officer Timek within the car, there could have been a second attempt by defendant to get back into the vehicle. The judge further described defendant as being within the "wingspan" of the Buick, even if he was not within arm's length of it. Based upon those findings, the trial judge concluded that the search was sustainable under the incident-to-arrest doctrine, notwithstanding this court's opinion in Eckel.
Having validated the automobile search and the seizure of the plastic bag, the motion judge found that the warrant for the ensuing police search of the hotel room was amply supported by probable cause. He therefore concluded that the fruits of that ensuing search likewise would be admissible at trial.
Following the suppression hearing, defendant entered into a negotiated plea, conditioned on his right to appeal the trial court's denial of his suppression motion. Specifically, defendant pled guilty to second-degree possession of CDS with intent to distribute, second-degree eluding and third-degree resisting arrest with respect to his conduct on August 15, 2004. Defendant also pled guilty to a single count of the separate indictment charging him with third-degree possession of CDS on August 3, 2004.
In March 2005 the trial court sentenced defendant in accordance with the conditional plea agreement as follows: an eight-year term, with parole ineligibility of four years, on the second-degree CDS offense; another eight-year term, also with parole ineligibility of four years, on the eluding offense; and five years on the resisting arrest offense. All of those sentences were to run concurrently. The court also sentenced defendant to a five-year term for the third-degree CDS possession offense in the separate indictment regarding the August 3, 2004 incident, that term also to be concurrent with the sentences imposed in the other indictment. Hence, for the two indictments, the aggregate sentence *1003 imposed upon defendant was eight years with a parole ineligibility term of four years.

II.
On appeal, defendant argues that the search of the Buick and the seizure of the plastic bag found in the car were invalid under the Fourth Amendment and under Article I, paragraph 7 of the New Jersey Constitution, and that the fruits of those searches should have been suppressed. In particular, defendant contends that neither the search-incident-to-arrest doctrine nor the automobile exception to the constitutional warrant requirement justified Officer Timek's reentry into the Buick after defendant had been handcuffed.
The State argues that the motion judge properly invoked both of those exceptions. The State alternatively contends that the search and seizure may also be sustained on other grounds not raised below,[1] including a claim that defendant lacked any reasonable expectation of privacy in the contents of the stolen Buick and a claim that defendant abandoned the bluish plastic bag. We address these contentions in turn.

A.
As a general matter, a search incident to a valid arrest is constitutional. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). For decades, the courts of this State construed the incident-to-arrest exception to extend to warrantless searches of a motor vehicle after one or more of its occupants had been arrested for a significant offense and removed from the vehicle. See, e.g., State v. Welsh, 84 N.J. 346, 419 A.2d 1123 (1980). Such incident-to-arrest searches of automobiles were declared valid under the federal constitution in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981).
However, in State v. Eckel, supra, the New Jersey Supreme Court rejected the Belton doctrine and determined that Article I, paragraph 7 of the New Jersey Constitution does not permit the police to search a motor vehicle without a warrant after arresting, removing and securing the occupants of that vehicle, unless some other exception to the constitutional warrant requirement applies. 185 N.J. at 541, 888 A.2d 1266.
Factually, Eckel involved a defendant who had an outstanding arrest warrant for failing to appear in municipal court. The police received a report that defendant and his girlfriend were in a car owned by the girlfriend's parents, which the parents had reported as stolen. A police officer who received that report then observed the girlfriend drive the vehicle out of defendant's driveway, with defendant seated in the front passenger seat. Id. at 524, 888 A.2d 1266. The officer stopped the car, asked defendant to get out, and placed defendant under arrest. Defendant was handcuffed and placed in the police car. The girlfriend then asked the police officer for permission to give defendant clothing he had left in her parents' car. The officer, concerned for his safety, went back to the car to retrieve the clothing himself. Id. at 525, 888 A.2d 1266. Upon lifting the clothing from the rear of the car, the officer discovered marijuana, cocaine and other drug paraphernalia. Id. at 525-26, 888 A.2d 1266.
Our Supreme Court in Eckel held that under such facts, where the defendant occupying *1004 the vehicle had been "arrested, removed and secured elsewhere," the justifications supporting the incident-to-arrest exception, i.e., the arresting officer's safety and the preservation of evidence, are absent. Id. at 541, 888 A.2d 1266. Accordingly, the Court held that the post-arrest search of the automobile in Eckel would be invalid under the New Jersey Constitution, unless some other recognized exception to the warrant requirement applied. Id. at 542, 888 A.2d 1266. Significantly, the Court in Eckel did not reverse defendant's conviction. Instead, it remanded the case to this court to consider alternative doctrines that the trial judge had relied upon to sustain the search, including consent, the plain view doctrine, and the automobile exception to the warrant requirement. Ibid.
Similarly, in State v. Dunlap, 185 N.J. 543, 888 A.2d 1278 (2006), the Court rejected the State's reliance on the incident-to-arrest exception where the defendant had left his vehicle and had been arrested and secured away from the vehicle by the police. In Dunlap, a mother reported to the police that she had discovered a handgun and illegal drugs in her daughter's bedroom. Id., 185 N.J. at 544, 888 A.2d 1278. With the mother's permission, the police searched the bedroom and observed a "jail photograph" of defendant on the wall. Ibid. Further investigation revealed that defendant was on parole and was believed to be dealing and transporting narcotics and carrying a gun. Id. at 545, 888 A.2d 1278. The police tracked down the daughter and placed her under arrest for narcotics and weapons violations. She informed the police that the drugs and firearm belonged to defendant. Ibid. At the police's request, the daughter telephoned defendant and asked him to come to her house.
About twenty minutes later the defendant in Dunlap arrived and parked his vehicle in front of the girlfriend's home. Ibid. After he got out of his car and began walking towards the residence, two police officers tackled the defendant. He was then arrested and secured on the front lawn, in the presence of about ten police officers who had gathered at the scene. Ibid. The police took defendant's keys, unlocked his car, and entered the passenger compartment, where they smelled burnt marijuana. Ibid. The police then searched the car and discovered heroin and a handgun inside. Id. at 546, 888 A.2d 1278.
Consistent with its reasoning in Eckel, the Court in Dunlap rejected the State's contention that the search of the defendant's car was authorized under the incident-to-arrest doctrine. Id. at 549, 888 A.2d 1278. The Court ruled that the exception "cannot be invoked where a defendant has no capacity to reach the interior of the vehicle to destroy evidence or to endanger the police." Id. at 548-49, 888 A.2d 1278. Because Dunlap had been removed and secured away from his car on the front lawn by several police officers, the Court found the incident-to-arrest exception inapplicable. Id. at 549, 888 A.2d 1278. The Court also rejected, for reasons we shall discuss in more detail below, the State's alternative claim that the search of Dunlap's car fell within the automobile exception Id. at 549-50, 888 A.2d 1278.
Here, there is no question that the police had probable cause on August 15, 2004 to arrest Ernest Carroll in the casino parking lot, given the information it had about his recent involvement in drug dealing; his suspicious retrieval of the bluish bag from the hotel room; his multiple motor vehicle violations observed by Officer Timek; his failure to respond to police commands to stop his vehicle and his subsequent evasive driving; his failed attempt to discard the bag through the car window; and his effort to flee the scene *1005 after crashing the car into a parked vehicle. Defendant does not challenge the validity of the police chase that led to that arrest, which was consistent with the stop-and-frisk tenets of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The pertinent question then becomes whether or not the police search of the Buick in the parking lot after Carroll had been apprehended can be justified under the incident-to-arrest exception, in light of Eckel and Dunlap. We conclude that it cannot.[2]
As in Eckel and Dunlap, the police in this case had arrested defendant and secured him at a distance from the vehicle before searching the inside of the Buick. As Officer Timek described the events, defendant had been handcuffed, patted down for weapons, removed from the Buick, placed in the custody of at least one other police officer, and was standing near a police car about "one car length" from the Buick when Officer Timek went inside the Buick and retrieved the plastic bag.
Although the motion judge described defendant's location as being within the "wingspan" of the Buick, the record indicates that defendant was secured one car length away from the Buick after he was placed under arrest, and thus the car was not then within his immediate control. We also reject the motion judge's surmise that defendant, while in handcuffs, might somehow have overcome the police and re-entered the vehicle, a proposition that is not reasonably supported by the record given the simultaneous arrival of several other police cars at the scene. Thus guided by the principles announced in Eckel and Dunlap, we are constrained to reject the trial court's reliance upon the incident-to-arrest exception.

B.
Nonetheless, we find that there are ample independent grounds to sustain the constitutionality of the search of the Buick and the seizure of the plastic bag. One of those grounds is the automobile exception, which indeed was the principal basis for the trial court's denial of the defendant's suppression motion.
The automobile exception to the warrant requirement was first recognized by the United States Supreme Court in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). This exception authorizes police officers who have probable cause to believe that an automobile contains evidence of criminal activity to search that vehicle, based upon the exigent circumstance arising from the vehicle's inherent mobility.
In State v. Cooke, 163 N.J. 657, 751 A.2d 92 (2000), the elements of the automobile exception, as applied in our own State's jurisprudence, were explained in detail. First, there must be probable cause to believe that contraband will be found in the vehicle. On this element, certainty is not required; it is sufficient if the police have a "well grounded suspicion" that evidence of a crime will be found in the car. Cooke, supra, 163 N.J. at 671, 751 A.2d 92. Second, there must be exigent circumstances at the time the car is searched. In Cooke, the Court illustrated this concept by finding exigency in a situation where it was "impracticable" to post a police officer and guard the vehicle, where *1006 third parties were aware of the car's location and that it had been used by defendant to store drugs, and where other parties in the area, which was known for drug-trafficking, could have removed the car. Id. at 675, 751 A.2d 92. Cooke instructs that the presence or absence of exigent circumstances requires a case-by-case evaluation. Id. at 671, 751 A.2d 92.
The automobile exception failed to justify the post-arrest automobile search in Dunlap because of a number of factual circumstances cited by the Supreme Court. The searched vehicle was not parked in an open area, but rather on the street in a residential neighborhood. Dunlap, supra, 185 N.J. at 550, 888 A.2d 1278. There was no evidence that third persons were aware of the car's location. Ibid. There were at least ten police officers on the scene, and "the State did not establish that an insufficient number would have been left to guard the car." Ibid.
The Supreme Court in Dunlap emphasized, however, that its invalidation of the search in that case should not be overread as a general repudiation of the automobile exception in post-arrest situations. As the Supreme Court declared at the end of its opinion:
Nothing in this opinion should be viewed as a retrenchment from the well-established principles governing the automobile exception to the warrant requirement.... The standards remain the same: probable cause and exigent circumstances, each of which to be determined on a case-by-case basis.
[State v. Dunlap, supra, 185 N.J. at 551, 888 A.2d 1278.]
Dunlap is quite different from the case at hand, in that the police in Dunlap created the physical context for defendant's arrest by prompting his girlfriend to ask him to drive to her residence. That request afforded the police the time to assemble at the residence, to anticipate defendant's arrival, and to effectuate his planned arrest. There is no indication in Dunlap that the defendant attempted to elude his arrest or offer any physical resistance. Indeed, the Court in Dunlap stressed that its ruling was based upon the "unique facts" of that case, and that "[p]olice safety and the preservation of evidence remain the preeminent determinants of exigency." Ibid.
By contrast, the police pursuit of defendant in this case was spontaneous. The location of defendant's arrest was completely unplanned. Defendant drove the Buick to an unanticipated location, which turned out to be an open parking area used by casino patrons. Defendant had caused a motor vehicle accident by smashing a parked car, presumably causing property damage to both vehicles that the police would need to inspect and address.
Defendant's behavior in avoiding and resisting his arrest also heightened the exigency. He ran from the car, leaving the car door open. He physically resisted Officer Timek when he was caught, managing to pull the officer back into the Buick before he was finally handcuffed. His volatile conduct increased the police's need to secure him and the location promptly.
Defendant's frantic effort to discard the plastic bag during the police pursuit of the Buick also enhanced the emergent character of the situation. Officer Timek had ample reason to suspect that the bag contained drugs, a weapon, or both. Its contents, if they fell into the hands of another, reasonably could have posed a danger to casino patrons or others passing through the open public space in the parking lot. Considering all of these factors, the motion judge had a more than sufficient basis to regard these circumstances as exigent, and to find that Officer Timek possessed probable cause to believe that the plastic bag contained contraband.
*1007 As the Supreme Court emphasized in Cooke:
"[E]xigent circumstances do not dissipate simply because the particular occupants of the vehicle have been removed from the car, arrested, or otherwise restricted in their freedom of movement."... That is a sound rule because, until the vehicle is seized by the police and removed from the scene, "it is potentially accessible to third persons who might move or damage it or remove or destroy evidence contained in it."
[Cooke, supra, 163 N.J. at 672, 751 A.2d 92 (quoting State v. Alston, 88 N.J. 211, 234, 440 A.2d 1311 (1981)).]
Those principles equally apply here. The Buick that defendant drove into the casino parking lot was potentially accessible to third persons who might have "remove[d] or destroy[ed] evidence contained within it." His arrest did not eliminate those exigent risks. We note in this regard that Officer Timek was injured by defendant, and that another officer needed to transport him to the hospital shortly after defendant's arrest. Defendant also needed medical attention, requiring police oversight while EMT workers were treating him at the scene. The two vehicles involved in the collision needed to be inspected, secured and possibly repaired.
Hence, the police had a variety of functions to accomplish at the scene of the accident and defendant's apprehension in a very short time. The record does not disclose how many patrol cars and policemen arrived at the scene after Officers Timek and Lasko. Even if multiple officers were present, we do not find that the police needed to "stand guard" over the Buick while concurrently applying to a judge for a search warrant. See State v. Colvin, 123 N.J. 428, 435, 587 A.2d 1278 (1991); see also State v. Cooke, supra, 163 N.J. at 675, 751 A.2d 92 (deeming it impracticable, in the factual context of that case, to require a police officer to leave his surveillance post and stand guard over the vehicle).
For these reasons, we affirm the motion judge's reliance on the automobile exception to validate Officer Timek's search of the Buick and his seizure of the bluish plastic bag in plain view on the floor of the car's passenger side. We also discern no constitutional violation, and none is asserted by defendant, in Officer Timek opening the plastic bag once he had secured it. See State v. Guerra, 93 N.J. 146, 459 A.2d 1159 (1983) (permitting the warrantless search of containers found in the course of a valid automobile search where there is probable cause to believe the container holds contraband).

C.
Lastly, although it is not necessary for us to do so, we separately conclude that the motion judge's findings of fact also support a legal inference that defendant had abandoned the plastic bag and had no reasonable privacy interest in it deserving of constitutional protection.[3] For purposes of search-and-seizure analysis, a defendant abandons property "when he voluntarily discards, leaves behind, or otherwise relinquishes his interest in the property in question so that he can no longer retain a reasonable expectation of privacy with regard to it at the time of the search." State v. Farinich, 179 N.J.Super. 1, 6, 430 A.2d 233 (App.Div.1981) (finding abandonment where defendant, after being approached by the police in an airport, dropped his suitcase and started to run away), aff'd o.b., 89 N.J. 378, 446 A.2d 120 *1008 (1982); see also State v. Hughes, 296 N.J.Super. 291, 296, 686 A.2d 1208 (App. Div.) (defendant on a bicycle held to have abandoned a container filled with bags of cocaine, because he threw the container against a curb when he noticed a police car approaching, and then continued to bicycle another fifty feet away), certif. denied, 149 N.J. 410, 694 A.2d 195 (1997).
Here, the facts determined by the trial judge indicate that defendant had abandoned both the stolen Buick and the plastic bag left within it, before he was apprehended by Officer Timek. Defendant indisputably ran away from the Buick after crashing it into a parked vehicle. He left the door of the vehicle open. The Buick had been stolen from its rightful owners. Defendant simply had no legitimate expectation of privacy in a stolen car that he left in a public space, fleeing from the scene of an accident.
Likewise, the evidence amply shows that defendant abandoned the contraband-filled plastic bag by leaving it in plain view on the floor of a stolen car at the accident scene. Defendant's obvious and sustained desire to rid himself of the bag once the police began pursuing him is corroborated by his futile attempts to discard it out the driver's side window of the Buick while being chased. See also Shackleford v. Commonwealth, 262 Va. 196, 547 S.E.2d 899, 906 (2001) (holding that defendant had abandoned a bag containing a gun and drugs, which he had deliberately left behind in a taxi that had transported him to a motel, when he determined that he was being followed by police).
Even if the evidence were not construed to support a finding that defendant had abandoned the plastic bag, his course of conduct surely bespeaks at least a severely diminished expectation of any privacy in the bag and its contents. That diminished privacy expectation, combined with the exigent circumstances surrounding the search, bolsters our conclusion that the police's warrantless seizure of the plastic bag and the immediate inspection of its contents was eminently reasonable. The "touchstone of the Fourth Amendment is [the] reasonableness" of police action. State v. Bruzzese, 94 N.J. 210, 217, 463 A.2d 320 (1983), (citing Delaware v. Prouse, 440 U.S. 648, 653-55, 99 S.Ct. 1391, 1395-97, 59 L.Ed.2d 660, 667-68 (1979)), cert. denied, 465 U.S. 1030, 104 S.Ct. 1295, 79 L.Ed.2d 695 (1984).
We thus affirm the trial court's denial of the motion to suppress the plastic bag and its contents that Officer Timek seized from the stolen Buick. We also affirm the trial court's denial of the defendant's motion to suppress the evidence found in the search of defendant's hotel room, after the police had discovered contraband in the plastic bag. Such evidence is the fruit of a constitutional search and seizure that led to the issuance of a valid warrant predicated upon probable cause. See Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 416, 9 L.Ed.2d 441, 453 (1963) (only the fruits of an illegal search are to be excluded); State v. Evers, 175 N.J. 355, 381, 815 A.2d 432 (2003) (a search warrant is presumed to be valid, and defendant has the burden of showing that it was issued without probable cause).
Affirmed.
NOTES
[1]  Defendant chose not to file a reply brief addressing these additional legal arguments. Neither counsel requested oral argument, nor did they seek to file supplemental briefs after the Supreme Court's opinions were issued in State v. Eckel, supra, and its companion opinion in State v. Dunlap, 185 N.J. 543, 888 A.2d 1278 (2006).
[2]  For purposes of this analysis we assume for the sake of argument, but do not decide, that Eckel and Dunlap have pipeline retroactivity to this appeal, which was pending at the time those cases were decided by the Supreme Court. At a minimum, this court's December 2004 opinion in Eckel, which was subsequently affirmed by the Supreme Court in January 2006, would control the suppression hearing conducted in January 2005.
[3]  See State v. Maples, 346 N.J.Super. 408, 416-17, 788 A.2d 314 (App.Div.2002) (upholding trial court's denial of suppression motion for different legal reasons than those identified below, as appellate courts "affirm or reverse judgments and orders, not reasons").


810 F.2d 118
Arthur J. BURTON, Petitioner-Appellant,v.Dale E. FOLTZ, Respondent-Appellee.
No. 85-1363.
United States Court of Appeals,Sixth Circuit.
Argued Sept. 23, 1986.Decided Feb. 2, 1987.Rehearing and Rehearing En Banc Denied March 23, 1987.

Mark H. Magidson (argued), Detroit, Mich., for petitioner-appellant.
Thomas A. Kulick (argued), Lansing, Mich., for respondent-appellee.
Before WELLFORD, MILBURN and BOGGS, Circuit Judges.
MILBURN, Circuit Judge.

1
Petitioner-appellant Arthur Jackson Burton appeals the decision of the district court denying his petition for a writ of habeas corpus under 28 U.S.C. § 2254.   Petitioner argues that:  (1) the law of the case doctrine precludes reconsideration by this court of issues decided on the appeal of his first petition for habeas relief;  (2) the jury instruction in the state court impermissibly shifted the burden of proof on intent in violation of  Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979);  and (3) the Sandstrom error was not harmless under the standard set forth in  Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).   As we agree with the decision of the district court and in view of the Supreme Court's recent decision in Rose v. Clark, --- U.S. ----, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986), we affirm.

I.

2
Petitioner Arthur J. Burton's conviction for assault with intent to murder arises from the stabbing of Deborah Boulley, his former girl friend and the mother of their young daughter.   On November 29, 1973, petitioner went to Boulley's home to discuss their relationship and the future of their child.   When Boulley opened her door, petitioner forced his way into her house and held a gun to Boulley's head.   He first attempted to convince her that he did not plan to harm her by removing the bullets from his gun.

3
However, when Boulley attempted to get away from him and to lock herself in her bathroom, petitioner followed her and began to stab her with a penknife.   After being stabbed in the arms, neck, back, and chest approximately thirty times, Boulley fell to the floor.   Petitioner then stabbed her seven or eight more times and left her in the bathroom while he ransacked the house in order to make it appear that the assault occurred during a burglary.   He returned fifteen or twenty minutes later and asked Boulley whether she was still alive.   When she responded, he stabbed her another eight times and threatened to kill their daughter.

4
Subsequently, he carried her into the bedroom and promised not to kill her if she would swear on the Bible that she would not reveal what had occurred.   She did so, and he called for an ambulance.   In May 1974, six months after the assault, Boulley informed the police that petitioner was her assailant.

PROCEDURAL HISTORY

5
On July 22, 1985, following a jury trial, petitioner was convicted in the Recorder's Court for the City of Detroit on the charge of assault with intent to murder.   At the trial, the judge gave the jury an extensive charge on the issue of intent.   The instruction included the following illustration challenged by petitioner:

6
Now I have given you some illustrations.   I hope you remember those.   That if a person say pointed a gun at a man's toe and shot him, that would be one thing, but if the person pointed the gun at somebody's head and fired on him and later on said well I didn't intend to kill him, I just intended to hurt him, you see the law presumes that an ordinary human being intends the ordinary consequences of his or her acts.   You couldn't run back and say, oh, well, I didn't intend it to go that far, when you pointed it or you actually fired on somebody at a vital--at a portion of the person's body.  (Emphasis supplied).

7
Petitioner was sentenced to life imprisonment.   The Michigan Court of Appeals affirmed the conviction, People v. Burton, No. 25591 (Mich.App.1977), and the Michigan Supreme Court denied leave to appeal.

8
Thereafter, Burton filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 in the district court for the eastern district of Michigan.   The district court denied the petition on February 4, 1980.   We reversed and remanded with instructions to grant the writ, concluding that the jury instruction deprived petitioner of due process of law by shifting the burden of proof on the issue of intent.   Burton v. Bergman, 649 F.2d 428 (6th Cir.1981).   Furthermore, we determined that the error was not harmless because "the jury might have entertained a reasonable doubt" that petitioner possessed the requisite intent.   Id. at 432.   The Supreme Court vacated this court's decision and remanded for reconsideration in light of  Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), which requires dismissal of habeas corpus petitions containing exhausted and unexhausted claims.   Bergman v. Burton, 456 U.S. 953, 102 S.Ct. 2026, 72 L.Ed.2d 478 (1982).

9
On remand, the district court allowed petitioner to amend his petition and granted the writ.   We again reversed in an unpublished opinion on the ground that the district court erred by allowing an amendment instead of dismissing the petition.   Burton v. Bergman, 729 F.2d 1460 (6th Cir.1984).   Subsequently, the district court dismissed the petition.

10
Petitioner then filed a second petition for a writ of habeas corpus under 28 U.S.C. § 2254.   The district court denied the second petition, and Burton filed this appeal raising the following issues:

11
A. whether the law of the case doctrine bars reconsideration of issues decided in the appeal of his first petition for habeas relief;

12
B. whether the jury instruction impermissibly shifted the burden of proof on the issue of intent in violation of  Sandstrom v. Montana, 442 U.S. 510 [99 S.Ct. 2450, 61 L.Ed.2d 39] (1979);  and

13
C. whether the alleged Sandstrom error was harmless under the standard set forth in  Chapman v. California, 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705] (1967).

II.
A.

14
Petitioner contends that this court is precluded from reconsidering issues decided in his first appeal.   Specifically, he argues that we are bound by the determination of a prior panel of this court that "the inference that petitioner intended to murder Ms. Boulley when he assaulted her is by no means inescapable."   Burton, 649 F.2d at 432.

15
As discussed above, our prior decision reversing and remanding to the district court with instructions to grant the writ was vacated by the Supreme Court.   Consequently, we must now determine whether our prior vacated decision is in any way binding as the law of the case in the present appeal, which involves petitioner's second petition for habeas relief.

16
In  Harrington v. Vandalia-Butler Board of Education, 649 F.2d 434 (6th Cir.1981), we determined that "a judgment on the merits ... will be deprived of its conclusive effect only if it is vacated, reversed, or set aside on direct appeal."   Id. at 438 (emphasis supplied).   Although this statement is properly characterized as dictum, it is supported by decisions from other circuits.   See, e.g., De Nafo v. Finch, 436 F.2d 737, 740 (3d Cir.1971) (per curiam).   Furthermore, in  Johnson v. Board of Education, 457 U.S. 52, 102 S.Ct. 2223, 72 L.Ed.2d 668 (1982) (per curiam), the Supreme Court vacated a judgment and declared that the law of the case doctrine would not constrain the district court or court of appeals upon reconsideration of the case.

17
Petitioner contends that the prior decision as to his first petition should be given effect as the law of the case because the prior decision was vacated on procedural and not substantive grounds.   He relies on  Hill v. Western Electric Co., 672 F.2d 381 (4th Cir.), cert. denied, 459 U.S. 981, 103 S.Ct. 318, 74 L.Ed.2d 294 (1982), in which the court determined that it may be appropriate to reinstate the findings and conclusions supporting a judgment vacated on procedural grounds once the defect has been cured.   Id. at 388 (emphasis supplied).  "The critical limiting factor is of course that the error or defect must not have infected the merits of the very determination sought to be reinstated."   Id.  Hill does not stand for the proposition that such findings must be reinstated.

18
Even if we were persuaded by the rationale in Hill, its application would not require the reinstatement of the findings made in the prior determination of the petitioner's first petition for habeas relief.   We conclude that the proper approach is reflected by the statement in Harrington that a vacated judgment is deprived of its conclusive effect.  649 F.2d at 438.   Consequently, the prior determination by this court as to the first petition is not binding on this panel.

19
Another factor mitigates in favor of this conclusion.   In this court's prior determination, the panel appeared to be influenced by precedent in which we had, for purposes of the harmless error analysis, distinguished cases in which intent was contested from cases in which it was not.   Burton, 649 F.2d at 432 n. 4.   As discussed more fully below, the Supreme Court's decision in Rose v. Clark, --- U.S. ----, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986), minimizes the importance of this distinction.   A well-established exception to the law of the case doctrine operates to allow reconsideration of issues determined in prior proceedings when the controlling law has been changed.   See, e.g., Amen v. City of Dearborn, 718 F.2d 789, 793-94 (6th Cir.1983), cert. denied, 465 U.S. 1101, 104 S.Ct. 1596, 80 L.Ed.2d 127 (1984);   In re United States Steel Corp., 479 F.2d 489, 493-94 (6th Cir.), cert. denied, 414 U.S. 859, 94 S.Ct. 71, 38 L.Ed.2d 110 (1973).

B.

20
In  Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), the Supreme Court held that a criminal defendant's due process rights are violated when he is convicted on the basis of a jury instruction which a reasonable juror may interpret to shift the burden of proof on an element of the crime or to create a conclusive presumption with respect to an element of the crime which must be proved by the state beyond a reasonable doubt.   In the present case, the jury was instructed that "the law, presumes that an ordinary human being intends the ordinary consequences of his or her acts."   We agree with the district court's conclusion that this charge is "virtually indistinguishable" from the one found to be constitutionally defective in Sandstrom, and that the instruction unconstitutionally shifted the burden of proof on the issue of intent to the petitioner.

21
However, even though the trial court erred in giving the instruction quoted above, petitioner's conviction will be upheld if the error was harmless beyond a reasonable doubt.  Rose, --- U.S. at ----, 106 S.Ct. at 3108-09;   Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).   We have consistently held that a Sandstrom instruction may be harmless error under certain circumstances.   Logan v. Abshire, 778 F.2d 283 (6th Cir.1985) (per curiam) (defendant admitted premeditation);   Martin v. Foltz, 773 F.2d 711 (6th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 3336, 92 L.Ed.2d 741 (1986) (defense of non-participation);   Engle v. Koehler, 707 F.2d 241 (6th Cir.1983) (per curiam) (error not harmless when intent was contested), aff'd by an equally divided Court, 466 U.S. 1, 104 S.Ct. 1673, 80 L.Ed.2d 1 (1984);   United States v. Crowder, 719 F.2d 166, 173 (6th Cir.1983) (en banc) (error harmless when instruction had "little or no application to any contested issue in the case"), cert. denied, 466 U.S. 974, 104 S.Ct. 2352, 80 L.Ed.2d 825 (1984);   United States v. Williams, 665 F.2d 107 (6th Cir.1981) (error not harmless when element of knowledge was contested).   Application of the harmless error standard permits the reviewing court to uphold the conviction only if it "may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt."   Delaware v. Van Arsdall, --- U.S. ----, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986);   see Merlo v. Bolden, 801 F.2d 252, 257 (6th Cir.1986).

22
Petitioner contends that, because his defense at trial was predicated on the presumption of innocence and the state's burden of proving every element of the crime beyond a reasonable doubt, the error in this case cannot be harmless.   He relies on a series of decisions in which this court emphasized the prejudicial effect of a Sandstrom instruction when the defendant contested the element of intent.   This analysis was explained in  Engle v. Koehler, 707 F.2d at 246:

23
If the defendant acknowledges that an intentional, malicious killing occurred and only claims non-participation, then a Sandstrom instruction may be harmless.   Conversely, if the defendant asserts lack of mens rea, a Sandstrom instruction can be extremely prejudicial even if overall proof of intent or malice is substantial.

24
See Martin, 773 F.2d at 719;   Conway v. Anderson, 698 F.2d 282, 285 (6th Cir.), cert. denied, 462 U.S. 1121, 103 S.Ct. 3092, 77 L.Ed.2d 1352 (1983).

25
Despite petitioner's contentions concerning the nature of his defense at trial, the district court found, and we are inclined to agree, that petitioner's defense was non-participation.1  However, even if we assume that petitioner's intent was in issue, that determination will not necessarily preclude a finding of harmless error.   The Supreme Court has recently determined that a Sandstrom error can be harmless even when the element of intent is contested.  Rose, --- U.S. at ----, 106 S.Ct. at 3108-09.   As earlier indicated, the question is whether, upon consideration of the whole record, "the evidence was so dispositive of intent that a reviewing court can say beyond a reasonable doubt that the jury would have found it unnecessary to rely on the presumption."   Id. at ----, 106 S.Ct. at 3109 (quoting  Connecticut v. Johnson, 460 U.S. 73, 97 n. 5, 103 S.Ct. 969, 983 n. 5, 74 L.Ed.2d 823 (1983) (Powell, J., dissenting)).

26
In Rose, the respondent was convicted in a Tennessee court on two counts of murder.   He sought habeas corpus relief on the ground that the jury instruction unconstitutionally shifted the burden of proof on the issue of malice.   The district court found that the instruction violated respondent's due process right and that the error could not be harmless because respondent defended on the ground that he lacked the requisite intent to commit the crime.   Clark v. Rose, 611 F.Supp. 294, 299-302 (M.D.Tenn.1983).   This court affirmed in an unpublished opinion.   Clark v. Rose, 762 F.2d 1006 (6th Cir.1985).

27
The Supreme Court reversed, holding that a Sandstrom error "is not 'so basic to a fair trial' that it can never be harmless."  Rose, --- U.S. at ----, 106 S.Ct. at 3107.   When review of the record as a whole indicates that the evidence of intent is "overpowering," a finding of harmless error is appropriate.   Id. at ----, 106 S.Ct. at 3108-09.

28
Thus, to the extent that Conway, Engle and Martin instruct that a Sandstrom error cannot be harmless where a defendant challenges the element of mens rea, they are modified by Rose and no longer represent the correct statement of the law in this Circuit.   In light of Rose, our determination of whether a Sandstrom instruction is harmless will no longer be "largely a function of the defense asserted at trial."   Engle, 707 F.2d at 246;   see also Conway, 698 F.2d at 285.   Rather, we will apply the traditional Chapman harmless error analysis to determine whether the record, examined in its entirety, establishes guilt beyond a reasonable doubt.   The specific inquiry in a Sandstrom case will be "whether the evidence was so dispositive of intent that a reviewing court can say beyond a reasonable doubt that the jury would have found it unnecessary to rely on the presumption."   Connecticut v. Johnson, 460 U.S. 73, 97 n. 5, 103 S.Ct. 969, 973 n. 5, 74 L.Ed.2d 823 (1983) (Powell, J., dissenting) (approved in  Rose v. Clark, 106 S.Ct. at 3109).

29
Merlo, 801 F.2d at 257.

30
Application of the foregoing standard to the facts of the instant case supports the conclusion that the district court's opinion must be affirmed.   This is not a case in which the jury was precluded from considering the issue of intent.   Cf. Hoover v. Garfield Heights Municipal Court, 802 F.2d 168, 177-78 (6th Cir.1986) (failure to instruct the jury on an essential element of the crime charged precluded application of the harmless error analysis).   Rather, this is a case in which the court charged the jury that it could presume intent only if it found that petitioner was guilty of the underlying act charged.   In Rose, the Court noted that when "the predicate facts conclusively establish intent, ... the erroneous instruction is simply superfluous:  the jury has found, in Winship's words, 'every fact necessary' to establish every element of the offense beyond a reasonable doubt."  ---  U.S. at ----, 106 S.Ct. at 3108 (citation omitted).

31
In the present case, the jury was required to find, and the guilty verdict establishes that it did find beyond a reasonable doubt, that petitioner was the assailant who attacked Deborah Boulley.   Moreover, the undisputed facts in this case create an overwhelming inference of intent.   Petitioner stabbed the victim approximately thirty-seven times.   After he ransacked the house and returned to find that she was still alive, he stabbed her another eight times.   Under circumstances such as these, we are confident in concluding "beyond a reasonable doubt that the jury would have found it unnecessary to rely on the presumption."   Merlo, 801 F.2d at 257 (quoting  Connecticut v. Johnson, 460 U.S. 73, 97 n. 5, 103 S.Ct. 969, 982 n. 5 (Powell, J., dissenting)).   Accordingly, we hold that the Sandstrom error was harmless beyond a reasonable doubt.

III.

32
For the reasons stated, the judgment of the district court dismissing the petition for habeas corpus is AFFIRMED.

1
 We note that a panel of this court earlier described the theory of the defense as the failure of the prosecutor to prove every element of the case beyond a reasonable doubt.   Burton, 649 F.2d at 430.   As discussed above, this characterization is not binding upon this panel


120 F.3d 276
U.S.v.Don Edward Cash
NO. 95-6866
United States Court of Appeals,Eleventh Circuit.
July 08, 1997
N.D.Ala., 114 F.3d 1201

1
DENIALS OF REHEARING EN BANC.