185 Cal.App.3d 477 (1986)
229 Cal. Rptr. 771
CHESTER ANSLEY, Petitioner,
v.
THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; LOS ANGELES COUNTY DEPARTMENT OF CHILDREN'S SERVICES, Real Party in Interest.
Docket No. B019240.
Court of Appeals of California, Second District, Division Four.
September 12, 1986.
*480 COUNSEL
Elaine S. Rosen for Petitioner.
No appearance for Respondent.
De Witt W. Clinton, County Counsel, and Sterling Honea, Deputy County Counsel, for Real Party in Interest.
OPINION
WOODS, P.J.
This original proceeding in mandate was commenced by the natural father of a dependent child of the juvenile court (Welf. & Inst. *481 Code, § 300 et seq.)[1] seeking to compel that court to hear the merits of his section 388 petition. His petition contended that lack of due process notice to him of the dependency proceeding was a defect in jurisdiction requiring setting aside the dependency judgment.
The question presented is whether a parent claiming lack of due process notice of a juvenile dependency petition can challenge the resulting dependency judgment by filing a petition pursuant to section 388 in the same dependency proceedings.
For the reasons discussed herein, we conclude that section 388 provides a parent the right to such a challenge.
The material facts are simple and not in dispute.
On August 22, 1983, real party, Los Angeles County Department of Children's Services (Department), filed a petition pursuant to section 300 to declare petitioner's minor child, born December 31, 1981, a dependent of the court (the section 300 petition). The section 300 petition proceeded under case No. J 945696.
The section 300 petition alleged neglect of the child by the natural mother, from whose custody the child was taken on August 18, 1983. The section 300 petition stated that the present address of the natural father, petitioner in these proceedings, was unknown. The mother's address was known, and she was given effective notice.
There is no evidence on the record that the Department made any attempt to serve petitioner with notice of the proceedings. He made no appearance in the dependency proceedings.
On October 20, 1983, judgment was entered pursuant to section 360, subdivision (c), adjudicating the minor a dependent child of the juvenile court and ordering continued placement in a foster home.
On December 10, 1984, an order issued in the dependency case setting a "Permanent Planning Hearing" pursuant to section 366.25.
On June 4, 1985, the Department commenced case No. A 15191 by filing a petition pursuant to Civil Code section 232 seeking to terminate parental custody and control of the minor (the section 232 petition). The petition alleged three grounds for termination under section 232: (1) intentional *482 abandonment  (subd. (a)(1)); (2) parental cruelty or neglect and deprivation of custody for one year  (subd. (a)(2)); and (3) placement of the child in out-of-home care for one year  (subd. (a)(7)).
Petitioner received service of a citation on the section 232 petition (case No. A 15191) by mail posted to a San Diego address in care of his mother.
On August 8, 1985, petitioner appeared in the termination proceedings and announced his challenge to the underlying dependency status of his daughter. He averred that he was neither served with notice of the dependency proceeding, nor had the Department undertaken a due process effort to notify him.
On August 18, 1985, petitioner filed a petition pursuant to section 388 (the section 388 petition) in the dependency proceedings seeking to vacate the dependency judgment. The petition repeated petitioner's claims that he had never received notice of the section 300 proceedings, and that the Department failed to make sufficient efforts to effect such notice as to satisfy due process. On the basis of this "new evidence" of lack of jurisdiction, he prayed that the dependency judgment be set aside as to him.
On September 5, 1985, the court issued notice that the section 388 petition had been judicially approved for hearing and set September 10 as the hearing date. (See § 388, 2d par., and Cal. Rules of Court, rule 1393(b), (c), (d) and (e).)
On September 10, 1985, Judge Boland granted petitioner's petition and set aside the dependency adjudication. He found that the Department had made no effort to locate or serve petitioner in any manner with notice of the dependency petition. He ordered a new dependency adjudication hearing and vacated the date set for the termination hearing. The Department appeared at that September 10 hearing.
However, by ex parte, sua sponte minute order dated September 13, 1985, Judge Boland vacated the September 10 order on the ground that neither the natural mother nor the Division of Adoptions had been given notice of the section 388 hearing.
On November 8, 1985, petitioner filed a new section 388 petition. The new petition repeated the allegations of lack of notice to petitioner. It alleged additional facts supporting this claim.
By order of November 8, 1985, Judge James P. Natoli approved the new section 388 petition for an adjudication hearing on December 31, 1985.
*483 At the hearing on December 31, 1985, Judge Tucker denied the section 388 petition, stating that the language of section 388  "change of circumstances or new evidence"  permits motions based upon "... a change of circumstances of a child" only. He suggested that petitioner file a motion in the pending termination proceedings (case No. A 15191) seeking to strike the dependency adjudication allegations therein on the same due process grounds.
On January 9, 1986, petitioner filed a "Motion to Dismiss" in the termination proceedings (case No. A 15191), asserting the same lack of due process notice.
That motion was denied by Judge Natoli on February 21, 1986, under authority of In re Mark K. (1984) 159 Cal. App.3d 94 [205 Cal. Rptr. 393]. Mark K. holds that summary adjudication of issues is prohibited in termination of parental custody proceedings.
On March 3, 1986, petitioner filed the present petition for mandate. We issued the alternative writ and temporarily stayed the adjudication hearing in the termination proceedings.

I
(1a) Petitioner challenges the 1983 dependency judgment claiming that absence of due process notice to him was a defect in jurisdiction rendering the judgment void. His claim is well-founded in the case law. It is settled beyond dispute that if a parent proves the absence of due process notice to him in juvenile dependency proceedings a "fatal defect" exists in the jurisdiction of the juvenile court to have entered the dependency judgment. (In re B.G. (1974) 11 Cal.3d 679, 688-689 [114 Cal. Rptr. 444, 523 P.2d 244]; In re Antonio F. (1978) 78 Cal. App.3d 440 [144 Cal. Rptr. 466].) The novel question presented here is whether this attack on jurisdiction can be made by way of a section 388 petition. If it can, and petitioner is entitled to a hearing on the merits of his petition, the dependency judgment would have to be set aside should he prevail.
In re Antonio F., supra, 78 Cal. App.3d 440, involved a total lack of due diligence to locate and notify a parent of a section 300 dependency petition. The circumstances were very similar to those alleged by petitioner below. The appellate court held that the parents' right to the custody of their children is one of the most fundamental of civil rights and is protected by the general principles of due process notice enunciated in Mullane v. Central Hanover Tr. Co. (1950) 339 U.S. 306, 314-316 [99 L.Ed. 865, 873-875, 70 S.Ct. 652]. (Id., at pp. 447-448.) Antonio F. went on to hold that a dependency *484 judgment must be set aside upon a parent's demonstration that it is void for lack of due process notice. (Id., at pp. 450-451.)
Petitioner urges that Antonio F. supports his right to set aside the dependency judgment by way of his section 388 petition. However, Antonio F. did not involve a parental challenge to a dependency judgment via a section 388 petition in the dependency proceedings. Rather, the procedural posture of Antonio F. was of a parent defending against a Civil Code section 232 petition for termination of parental rights which was based upon a prior dependency judgment.
Antonio F. derived its due process analysis from In re B.G., supra, 11 Cal.3d 679, which established the applicability of due process notice principles to juvenile court dependency judgments. In re B.G. concerned a due process notice defect in a dependency judgment in the context of a statutorily mandated periodic status review hearing (now mandated by §§ 366 and 366.2). The Supreme Court pointed out that a "fatal defect" existed in the dependency judgment due to the total lack of effort to give due process notice to the mother. (Id., at p. 689.) However, the Supreme Court ultimately held that the mother's formal election to acknowledge the dependency judgment and request modification of the dispositional order at the status review hearing constituted a waiver, precluding a jurisdictional challenge based on otherwise applicable due process principles.
We now turn to the dispositive question of whether the jurisdictional due process notice defect may be raised by means of a section 388 petition.

II
Section 388 provides: "Any parent or other person having an interest in a child who is a dependent child of the juvenile court or the child himself through a properly appointed guardian may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. The petition shall be verified and, if made by a person other than the child, shall state the petitioner's relationship to or interest in the child and shall set forth in concise language any change of circumstance or new evidence which are alleged to require such change of order or termination of jurisdiction.
"If it appears that the best interests of the child may be promoted by the proposed change of order or termination of jurisdiction, the court shall order that a hearing be held and shall give prior notice, or cause prior notice to *485 be given, to such persons and by such means as prescribed by Section 386, and, in such instances as the means of giving notice is not prescribed by such sections, then by such means as the court prescribes." (Italics added.)
The language of section 385, which is to be read in conjunction with the language of section 388 (In re Corey (1964) 230 Cal. App.2d 813, 832 [41 Cal. Rptr. 379]),[2] provides: "Any order made by the court in the case of any person subject to its jurisdiction may at any time be changed, modified, or set aside, as the judge deems meet and proper, subject to such procedural requirements as are imposed by this article."
The disjunctive language of section 388 ("ground of change of circumstance or new evidence") reflects the Legislature's intention to state two separate grounds for setting aside or modifying a dependency judgment or dispositional order. Neither ground is restricted to the subject child by the statute itself; the change in circumstances could apply to those of the noncustodial parents. Likewise, the noncustodial parents could also be the source of the new evidence which is the second ground stated by section 388. However, the change of circumstances or new evidence must be of such significant nature that it requires a setting aside or modification of the challenged prior order.
(2) When the language of a statute is clear, its plain meaning should be followed, without reading unspecified restrictions into it, unless to do so would lead to an absurd result. (Great Lakes Properties, Inc. v. City of El Segundo (1977) 19 Cal.3d 152, 155-156 [137 Cal. Rptr. 154, 561 P.2d 244]; In re Andrews (1976) 18 Cal.3d 208, 212-213 [133 Cal. Rptr. 365, 555 P.2d 97].) It cannot be seriously contended that accepting the plain language of section 388 would lead to an absurd result here. Moreover, case law interpreting a parallel statute, section 778, does not support the limitation upon section 388 imposed by respondent.
*486 (1b) Respondent's ruling that section 388 limits motions to "new evidence" relating only to "... a change in circumstances of the dependent child ..." is squarely contrary to the holdings of reported cases.
In In re Steven S. (1979) 91 Cal. App.3d 604 [154 Cal. Rptr. 196], the minor was adjudicated to be a ward of the court for commission of a felony (pursuant to § 602). After judgment, the minor's counsel filed a motion in that proceeding seeking a new trial on the ground of "new evidence" challenging the identification of the child as the perpetrator. The motion also sought to vacate the judgment under authority of sections 775 and 778. The juvenile court ruled that sections 775 and 778 (which, as noted, supra, are identical to §§ 385 and 388, respectively) did not authorize challenges to the original jurisdictional judgment of wardship and refused to consider the motion on the merits. It was held on appeal that the juvenile court erred. Both sections 775 and 778 were held to contemplate challenges to the dependency judgment on the basis of "new evidence" going to the validity of the initial jurisdictional judgment. Refusal to hear the merits of the new evidence was a prejudicial denial of the minor's due process rights.
Similarly, In re Corey (1964) 230 Cal. App.2d 813, 832 [41 Cal. Rptr. 379], involved a petition pursuant to sections 775 and 778 that challenged a wardship judgment on the basis of "new evidence" that a third party subsequently confessed to the offense. On appeal from denial of the petition to set aside the judgment, the Corey court determined that such a challenge to the judgment was statutorily authorized and it reviewed the order of denial on its merits for substantial supporting evidence on the record.
Hence, both Steven S. and In re Corey hold that new evidence challenging jurisdictional facts upon which a dependency judgment rests is a proper ground for challenging the judgment under sections 775 and 778. Given that sections 388 and 385 are derived from and identical to sections 778 and 775, respectively, and since these statutes perform identical functions, it follows that "new evidence" showing absence of jurisdictional notice necessary to support a dependency judgment is also an appropriate ground for a section 388 petition.
People ex rel. Pollock v. Bogart (1943) 58 Cal. App.2d 831 [138 P.2d 360], provides further support for this conclusion. There a grandmother brought a motion under former section 745[3] (the predecessor of § 385 *487 providing for motions to modify or set aside dependency judgments) to set aside a dependency judgment based on neglect contending that she was a person entitled to, but not given, notice.
The Bogart court held that the record in the dependency proceedings showed that the grandmother was not a parent, guardian, or person having legal custody of the minor at the time the dependency proceedings were commenced. The controlling statute did not require notice to her. (Id., at pp. 834-835.) Thus, the jurisdiction of the court to enter the judgment was not divested by the absence of any attempt to give her notice. Bogart implicitly recognizes the standing of a party entitled to notice to attack a juvenile dependency judgment on the ground of lack of notice in that same proceeding.
The propriety of a postjudgment due process challenge in juvenile dependency proceedings is also discussed in In re B.G., supra, 11 Cal.3d 679. There, the first time the natural mother received notice of the dependency proceedings was when she got notice of a postjudgment periodic status review hearing. She appeared and elected to acknowledge the dependency court's jurisdiction by requesting a modification of placement of the children to her. The B.G. court pointed out that the lack of any effort to notify the mother of the original dependency petition constituted a "fatal defect" in the juvenile dependency judgment under well established principles of due process. However, it held that the mother's formal consent to jurisdiction and participation in the periodic review hearing effected a waiver of her entitlement to assert this meritorious challenge to the underlying dependency judgment.
In re B.G. involved a due process notice challenge in dependency periodic review proceedings under former section 729 (now controlled by §§ 366 and 366.25), while our petitioner asserts his challenge by a section 388 petition. This distinction is not material. Periodic status reviews and section 388 proceedings each occur in postjudgment section 300 dependency proceedings. (3) The juvenile court has continuing jurisdiction to modify or set aside any of its previous orders or judgments until the dependent minor attains 21 years of age or is otherwise removed from juvenile court jurisdiction. (See §§ 301 and 390.)
There is no apparent reason why the law should allow a parent to raise a due process challenge based on inadequate notice in a periodic review proceeding but not by a section 388 petition. The defined scope of section 388 is patently broader than that of former section 729. Former section 729 was (and present §§ 366 and 366.25 are) concerned with review of current circumstances.
*488 (4) Finally, the reasonableness of construing section 388 as we do is supported by consideration of the general rule that a judgment void for lack of due process notice or extrinsic fraud is subject to attack at any time in a proceeding or action initiated for that purpose. (See Stern v. Judson (1912) 163 Cal. 726, 735-736 [127 P. 38]; Parsons v. Weis (1904) 144 Cal. 410, 416 [77 P. 1007]; City of Los Angeles v. Morgan (1951) 105 Cal. App.2d 726, 730-731 [234 P.2d 319].)
It was a clear abuse of discretion for respondent to have refused to consider the merits of the section 388 petition.

III
Real party's return wholly fails to address the determinative issue of the standing of a parent to utilize section 388 to vacate a section 360 dependency judgment on "new evidence."

A.
Real party's first contention is that the alternative writ should not issue because section 1068 of the Code of Civil Procedure provides that a "writ of review" may not issue where there is an appeal available. Section 395 provides for the appealability of orders made after a section 300 judgment.
The short answer to this claim is that this court did not issue a writ of review (certiorari) pursuant to section 1068. Rather, this is a proceeding in mandate pursuant to section 1086 of the Code of Civil Procedure. (5) Section 1086 and case law establish that mandate may issue if the alternative remedy of appeal is deemed to be inadequate. (Provencher v. Municipal Court (1978) 83 Cal. App.3d 132, 133-134 [147 Cal. Rptr. 615]; Hogya v. Superior Court (1977) 75 Cal. App.3d 122, 128-129 [142 Cal. Rptr. 325].) Issuance of the alternative writ is a conclusive determination that appeal is an inadequate remedy. (Greene v. Superior Court (1961) 55 Cal.2d 403, 405 [10 Cal. Rptr. 817, 359 P.2d 249]; Brown v. Superior Court (1971) 5 Cal.3d 509, 515 [96 Cal. Rptr. 584, 487 P.2d 1224].)
Petitioner's delay in seeking appellate relief is directly attributable to the ruling of the judge who denied the motion to vacate the dependency judgment in the section 300 proceeding and directed petitioner to file a similar motion in the pending termination proceedings.

B.
(6) Real party's second contention is that public policy underlying section 232 favors trial of parental termination proceedings within 45 days of filing of the petition. This argument is irrelevant.
*489 The delay in adjudication of the underlying termination petition arises from respondent's erroneous refusal to hear the merits of the section 388 petition in December 1985. This court issued its alternative writ giving respondent the alternative of proceeding immediately according to law by adjudicating petitioner's section 388 motion on its merits. Respondent chose not to conduct such a speedy hearing and thus forced the hearing on the termination petition to be delayed pending the conclusion of this mandate proceeding. Dismissing the mandate proceeding at this time would be unfounded and dysfunctional to the interests of justice and of the subject minor.

C.
(7) Real party argues some facts concerning the substantive issue of whether due diligence was employed to locate petitioner and give notice of the dependency proceedings in 1983. Real party alleges that petitioner who went to Texas that year, shortly after his arrest in connection with allegations of attempted violence against the mother, intentionally left no forwarding address.
From these accusations of bad character and conduct of petitioner, real party appears to suggest that the issue of its due diligence should be summarily resolved against petitioner in this mandate proceeding. We are unable to discern the relevance of these fact allegations to the critical procedural question at hand. Nor does the coincidental fact that the underlying section 232 proceeding rests upon the validity of the prior section 360 judgment obviate the important question of whether petitioner has standing to challenge the judgment in the dependency proceeding itself.

D.
(8) Real party objects to the verification of the petition as defective, citing, without specification, Code of Civil Procedure sections 1069, 446, and 2015.5.
It is true that the verification is improperly qualified by the reservation that it verifies upon personal knowledge only those facts that are not "supported by citations to the record, exhibits or other documents." However, no critical facts that are improperly verified are directly disputed by real party's return or necessary to determination of this proceeding in mandate.
Real party also asserts that the petition contains numerous "untruths and half-truths" in an unstructured narrative form which renders an answer by real party "impractical." No specification is made of the material fact *490 allegations denied by real party. As was shown in the preceding discussion on the critical issue concerning section 388, there is no significant dispute concerning the material facts.

E.
(9) Neither is there merit in real party's argument that because the section 232 proceedings are necessarily preliminary to allowing adoption or other suitable placement of a minor it follows that the section 232 proceedings are independent of the issue of section 300 dependency status.
Real party ignores the critical point that one of the grounds upon which its section 232 petition is based is that a valid section 300 adjudication exists establishing that the child was an abandoned dependent of the juvenile court for a period of one year. The issue of the one-year period of valid section 300 dependency is thus integral to the section 232 proceedings. The sole question here is whether petitioner had a right to an adjudication on the merits of his motion under section 388.

F.
(10a) There is no merit in the contention that respondent validly refused to hear the merits of the section 388 motion because the second paragraph of that statute provides that a hearing must be held only "... if it appears that the best interests of the child may be promoted by the proposed change of order or termination of jurisdiction."
First, the proviso of this second paragraph refers to the initial, prehearing judicial determination of probable cause to set the section 388 petition for hearing, not to the ultimate criterion for granting the motion on its merits. As recited in the statement of facts herein, this proviso was satisfied twice by orders of the juvenile court stating that the petition had been reviewed and was approved for hearing.
(11) Second, even if the proviso in the second paragraph of section 388 were applicable, a judgment that is proven void due to lack of due process notice suffers from a fatal jurisdictional defect. It may not be perpetuated on the rationale that setting it aside would not, in the court's view, be in the best interests of the child. (In re B.G., supra, 11 Cal.3d 679, 688-689; City of Los Angeles v. Morgan, supra, 105 Cal. App.2d at pp. 730-731.)
(10b) Third, it is implicit in the juvenile dependency statutes that it is always in the best interests of a minor to have a dependency adjudication *491 based upon all material facts and circumstances and the participation of all interested parties entitled to notice.

IV
Let a peremptory writ of mandate issue directing respondent to vacate its order of December 31, 1985, in Los Angeles Superior Court case No. J 945696, which refused to consider petitioner's petition on the merits, and to thereafter proceed to hear and determine that motion on its merits according to law.
It is further ordered that the temporary stay concerning Los Angeles Superior Court case No. A 15191 shall remain in effect until respondent has fully complied with the directions expressed in this opinion.
McClosky, J., and Arguelles, J., concurred.
The petition of real party in interest for review by the Supreme Court was denied December 3, 1986.
NOTES
[1]  All statutory codes pertain to the Welfare and Institutions Code unless otherwise noted.
[2]  Both sections 385 and 388 were added to the code in 1976. (Stats. 1976, ch. 1068, § 12, p. 4779.) They control dependency proceedings wherein a child is under juvenile court jurisdiction due to some neglect, abandonment, or other conduct of parents or guardians. They are derived from and contain language identical to sections 775 and 778, respectively. Sections 775 and 778 are the analogs of these two statutes in the parallel area of juvenile wardship proceedings based upon a minor's violation of law (as defined in § 602) or upon the minor's habitual disobedience of his parents or custodians (as defined in § 601).

When restructuring of the code occurred in 1976 to provide separate statutory schemes for dependency and wardship proceedings, the text of sections 775 and 778 was duplicated in the new sections 385 and 388. (Stats. 1961, ch. 1616, § 2, pp. 3491-3492; Stats. 1961, ch. 1616, § 2, p. 3492; amended by Stats. 1963, ch. 917, § 11, p. 2168 and Stats. 1976, ch. 1068, § 69, p. 4795.)
The two pairs of statutes thus provide identical guidelines in dependency and wardship proceedings, respectively. Cases construing sections 785 and 788 prior to enactment of sections 385 and 388 are accordingly viewed as applicable to the new sections.
[3]  Former section 745, effective at the time Bogart was decided, was substantively identical in text to current sections 385 and 775. It provided: "Any order made by the court in the case of any person subject to its jurisdiction under the provisions of section 700 may at any time be changed, modified, or set aside, as the judge deems meet and proper." (Stats. 1937, ch. 369, § 745, p. 1040.)


735 F.2d 1012
Martha DUTY and Brenda Davis, Plaintiffs-Appellants, Cross-Appellees,v.UNITED STATES of America DEPARTMENT OF INTERIOR,Defendant-Appellee, Cross- Appellant.
Nos. 83-5379, 83-5452.
United States Court of Appeals,Sixth Circuit.
Argued March 15, 1984.Decided June 11, 1984.

Stephen W. Owens (argued), Paintsville, Ky., Stephen Nick Frazier, Paintsville, Ky., for plaintiffs-appellants, cross-appellees.
Louis DeFalaise, U.S. Atty., Lexington, Ky., Peter Davenport (argued), Jane E. Graham, Asst. U.S. Attys., for defendant-appellee, cross-appellant.
Before MERRITT and MARTIN, Circuit Judges, and WEICK, Senior Circuit Judge.
WEICK, Senior Circuit Judge.

1
Brenda Davis and Martha Duty, Plaintiffs-Appellants, have appealed, and the United States Department of the Interior, Defendant-Appellee, has cross-appealed to this Court from the judgment of the Federal District Court for the Eastern District of Kentucky awarding Plaintiffs-Appellants damages in this suit filed pursuant to the Federal Torts Claims Act, 28 U.S.C. Sec. 2675.

2
Brenda Davis was the owner and operator of and Martha Duty was a passenger in a 1975 Ford Pinto automobile that was struck in the rear on September 6, 1979, by a government-owned vehicle driven by Zekie Hensley, an employee of the Department of the Interior.  After the accident, Ms. Davis was confined to the hospital for 11 to 12 days, and received treatment and medicines from various doctors thereafter.  Her complaints included abdominal soreness, neck pain and lower back pain.  Davis was again confined to the hospital for seven days in October, 1979, for her abdominal problems, and subsequently for a longer period in September, 1980, for a decompressive laminectomy and spinal fusion.  Ms. Duty was not confined to the hospital as a result of the accident, but received continuing treatment and medicines from various doctors as a result of the collision.  Her primary complaint was neck pain resulting from a "whiplash" type of injury.

3
Each Appellant filed a complaint on November 16, 1981, in the United States District Court for the Eastern District of Kentucky.  In her complaint, Brenda Davis sought $147,200 for damages consisting of severe and permanent physical injuries, pain and suffering, loss of earnings, and the costs of her medical care and treatment.  Ms. Davis also sought damages of $1800 for automobile repairs.  In her complaint, Martha Duty sought $130,000 for damages consisting of severe and permanent physical injuries, pain and suffering, loss of earnings, and the costs of her medical care and treatment.

4
A bench trial was conducted before District Judge G. Wix Unthank on March 22, 1983.  In his Memorandum Opinion and Order filed March 23, 1983, Judge Unthank found that at the time of the accident, both Ms. Davis and Ms. Duty were exercising ordinary care in the performance of their duties, and that Mr. Hensley failed and neglected to exercise ordinary care and perform the duties required of him, such that Mr. Hensley's breach of duty was the proximate cause of the collision and injuries and damages resulting therefrom.

5
The District Court awarded Brenda Davis the sum of $8758.90 for medical expenses and $8758.90 for pain and suffering experienced as a direct and proximate result of Zekie Hensley's negligence.  The Court further found that Ms. Davis did not receive a permanent injury by reason of the accident, but that she did experience substantial pain and suffering, including pain and suffering attributable to the aggravation of her previously existing spondylolisthesis (abnormal curvature of the spine at the tailbone).

6
The District Court awarded Martha Duty the sum of $1640 for medical expenses and $1640 for pain and suffering experienced as a direct and proximate result of Mr. Hensley's negligence.  The Court further found that Ms. Duty did not receive a permanent injury by reason of the accident, and that her age and various previous ailments attributable to age contributed to a minor extent to her pain and suffering.

7
Final judgment was entered in accordance with Judge Unthank's Memorandum Opinion and Order on May 3, 1983, from which Ms. Davis and Ms. Duty have appealed to this Court.

8
Brenda Davis and Martha Duty contend that the District Court erred in finding that neither Appellant suffered permanent injury as a result of the collision, and that the District Court erred by improperly apportioning damages with respect to Appellants' pre-existing ailments.  On cross-appeal, the government argues that the District Court erred in awarding Brenda Davis medical expenses for stomach ailments which were unrelated to the accident.  For the reasons hereinafter stated, we reverse.

I.

9
28 U.S.C. Sec. 1346(b) provides in relevant part:

10
... the district courts ... shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, ... for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

11
Thus, in this case, the law of the State of Kentucky, where the accident occurred, governs the rights of the parties.    See also Hatahley v. United States, 351 U.S. 173, 182, 76 S.Ct. 745, 752, 100 L.Ed. 1065 (1956);  James v. United States, 467 F.2d 832 (4th Cir.1972).

12
In Kentucky, one injured by another's negligence is entitled to recover full compensation for all damages proximately resulting from that negligence.    Field Packing Co. v. Denham, 342 S.W.2d 524, 526 (Ky.1961).  The amount of damages for personal injuries in a particular case must be determined by the character and extent of the injuries and the consequences thereof.    Hedges v. Neace, 307 S.W.2d 564, 567 (Ky.1975).  Properly included when computing the amount are damages to property, pain and suffering, and medical expenses incurred or reasonably certain thereafter to be incurred as the direct and proximate result of injuries received.    Roland v. Murray, 239 S.W.2d 967, 970 (Ky.1951).  Damages further include loss of earnings and compensation for future impairment of earning power.    Field Packing, supra, at 526.

13
It is well established under Kentucky law that a tort-feasor is liable for all damages proximately resulting from his negligence, even though the plaintiff's injuries may result from the aggravation of a pre-existing physical or mental impairment.    Leslie v. Egerton, 445 S.W.2d 116, 119 (Ky.1969).  However, the award must take into account the extent of that pre-existing impairment.    Louisville and Nashville R.R. Co. v. Mattingly, 318 S.W.2d 844 (Ky.1958).

14
The permanency of the injury is one of the basic elements entering into an award of damages.    Tichenor v. Roll, 253 S.W.2d 13, 14 (Ky.1952).  However, permanency is not established where evidence of such is speculative and shows no more than a possibility of lasting impairment.    Field Packing, supra, at 527.

15
Questions raised concerning damages are essentially questions of fact.    Riverside Coal Co. v. United Mine Workers of America, 410 F.2d 267, 274 (6th Cir.1969).  F.R.Civ.P. 52(a) states in relevant part:

16
In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state its conclusions of law thereon....  Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.

17
A finding of fact will be found to be clearly erroneous if it is not supported by substantial evidence.  See, e.g., 9 C. Wright & A. Miller, Federal Practice and Procedure Sec. 2585 (1971).

II.

18
We hold that the findings of fact by the District Court that Brenda Davis and Martha Duty did not receive permanent injuries by reason of the accident are not supported by substantial evidence, and are clearly erroneous.  In his deposition, Dr. Musgrave testified that the injuries suffered by both Appellants were permanent.  There was no contrary evidence in the record upon which the District Court could have based its findings of no permanent injuries.

19
We further hold that the District Court's finding of fact that Brenda Davis had a diagnosed painful spondylolisthesis and experienced considerable pain and suffering prior to the accident because of this ailment is also clearly erroneous.  There is no evidence in the record to support the finding that Ms. Davis' spondylolisthesis caused her any pain prior to the condition's aggravation by the accident.

20
Finally, we are unable to determine on appeal the basis on which the District Court computed its awards of damages to Appellants.  On remand, findings with respect to this issue should be stated clearly and in sufficient detail to facilitate our review in the event of appeal.    See Hatahley v. United States, supra, at 182, 76 S.Ct. at 752;  United States v. Tuschman, 405 F.2d 688, 690-91 (6th Cir.1969).  Specifically, and pursuant to F.R.Civ.P. 52(a), the District Court should enumerate the amount of its awards attributable to damage to property, past and future pain and suffering, medical expenses incurred or reasonably certain thereafter to be incurred as the direct and proximate result of injuries received in the accident, and loss of earnings, including future impairment of earning power.  Furthermore, the court should specify what portions of Appellants' damages are attributable to the aggravation of pre-existing impairments, as well as damages attributable to the permanency of Appellants' injuries.

21
The judgment of the District Court is therefore REVERSED, and the case is REMANDED for further proceedings in conformity with our opinion as to damages.


942 F.2d 884
56 Fair Empl.Prac.Cas. (BNA) 1514,57 Empl. Prac. Dec. P 40,988Clifton DAVIS, Plaintiff-Appellee,v.YAZOO COUNTY WELFARE DEPARTMENT, Defendant-Appellant.
No. 90-1185.
United States Court of Appeals,Fifth Circuit.
Sept. 10, 1991.

Robert E. Sanders, Sp. Asst. Atty. Gen. and Mike Moore, Atty. Gen., Jackson, Miss., for defendant-appellant.
Jim Brantley and John S. Knowles, III, Jackson, Miss., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Mississippi.
Before WISDOM, KING and BARKSDALE, Circuit Judges.
KING, Circuit Judge:

1
The Yazoo County Welfare Department appeals from a finding of sexual discrimination made by the district court in favor of plaintiff-appellee Clifton Davis in a Title VII failure to hire case.   Finding clear error in what appears to be the crucial basis for the district court's finding of discrimination, we vacate and remand for reconsideration.

I. Background

2
In August 1987, two positions for an eligibility worker1 opened up in the Yazoo County Welfare Department (the Department).   Plaintiff-appellee Clifton Davis, a thirty-three year old black male, applied for one of these positions.   Davis satisfied the minimum objective requirements for this position, namely, completion of two years of college in an accredited college or university.

3
Forty-one other qualified individuals applied for one of the positions.   Given the relative timing of the job openings and the application submissions, twenty-seven of the forty-one, as well as Davis, were considered for the second position.2  Thalia Blain, Director of the Department, interviewed each of the candidates for the position.   After the interviews, Blain selected Gloria Owens, a black female, for the first position, and Janice Reed, a white female, for the second.   She forwarded these recommendations to the State Personnel Board, which formally hired the two recommended candidates.

4
In September 1987, a position as a child support enforcement officer3 opened up in the Department.   Blain posted vacancy notices that described the position and the minimum requirements.   Eleven qualified individuals, including Davis, applied for this position.   The eleven consisted of eight females (five black, three white) and three black males.   A black female, Dorothy McCoy, was selected for this position.   Also in September, another position as an eligibility worker opened up in the Department.   The Department considered the twenty-six remaining applicants4 carried over from the August application submissions.   In addition, the Department considered applications from nine new applicants--all female.   Blain recommended, and the Department hired, Sammie Stuart, a black female.

5
Davis filed a complaint with the Equal Employment Opportunity Commission, alleging that the Department refused to hire him because he was black and because he was male.5  After receiving a right to sue letter, Davis instituted this action against the Department alleging racial and sexual discrimination in violation of Title VII.

6
The Department contends that its hiring decisions were based on the relative credentials of the applicants and on their ability, as demonstrated in their interviews, to perform successfully in the jobs for which they applied.   Blain testified, specifically, that she was unimpressed with the presentation of information on, and the physical condition of, Davis' application.   She stated, for example, that Davis' application was torn when presented to her, and had tape and three white-outs on it.   She also stated that Davis failed to list his employment history in reverse chronological order, as instructed on the form.   Moreover, she was not favorably impressed by his comportment during the interview;  for example, he slouched and wore sunglasses.

II. Standard of Review

7
In a Title VII action that has been fully tried on the merits, such that the district court has before it all the necessary evidence to make the ultimate finding of discrimination, the factual inquiry is whether the defendant intentionally discriminated against the plaintiff.  United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983).   On review, this court must therefore decide whether the ultimate finding of discrimination by the district court was clearly erroneous.  Anderson v. City of Bessemer City, North Carolina, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985).   A finding is clearly erroneous "when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed."   United States v. United  States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948).

III. The District Court's Findings

8
The district court decided in favor of Davis and held that the Department had sexually discriminated against him in violation of Title VII.   The linchpin of the district court's ultimate finding was its decision to credit the testimony of Davis and his sister over the contradictory testimony of Blain.   A careful reading of the district court's opinion, however, persuades us that the logic of this decision was fundamentally flawed.   As the court stated, it "might be persuaded by th[e] testimony" of Blain regarding the superior presentation of the hirees' applications over that of Davis as evidence of legitimate, non-discriminatory factors that would account for the decisions and insulate the Department from liability.6

9
The district court then stated:  "However, there's a crucial piece of evidence which undermines this entire structure of proof and convinces this Court to find for the Plaintiff."   The crucial piece of evidence referred to by the district court concerned two telephone conversations--one between Blain and Davis' sister;  the other between Blain and Davis.   Davis' sister testified that on September 8, Blain called, asked for Davis who was not at home, and left a message "that he ha[d] the child support job" and should "come by or call [Ms. Blain] as soon as possible."   Davis testified that upon receipt of this message, he called Blain.   She was not in, so he called again on the morning of September 9.   According to his testimony, when he reached Blain on September 9, she stated:  "oh, yeah, Clifton, we looked at your application, we seen that you already gone by the school and got your paralegal certificate and we want you to know that we have already considered you for the position of child enforcement officer and you got the job, come in on the ... first of October."

10
According to Blain's testimony, she called Davis7 in order to find out whether he desired a separate interview for the child support enforcement position.   As she explained:  "I had interviewed him--I called him to tell him that I had received his child support enforcement officer position [application], and the purpose of my talking with him was to see whether or not he wanted to come back for another interview or whether or not the first interview would stand."   She stated that in her conversation with him on September 10, she told him "that he would be given consideration without having to have another face-to-face interview."   On September 11, Blain sent a rejection letter to Davis.   As she stated, she thought that she had made a fair assessment of the situation, because she "gave [Davis' application] serious thought between the two time periods involved."

11
This court must give "due regard ... to the opportunity of the trial court to judge of the credibility of the witnesses" and "[f]indings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous."   Fed.R.Civ.P. 52(a).   In this case, however, the district court made a credibility determination based upon an erroneous perception that a logical inconsistency existed in Blain's testimony.8  Specifically, in describing the "crucial piece of evidence" on which it relied, the district court referred to a logical inconsistency between Blain's account of her own words in the September 10 telephone conversation and her subsequent actions.   As the court stated:

12
[Ms. Blain] claims that she but called to advise Plaintiff that he was under consideration.   Then, she says, on the very next day she wrote Plaintiff a rejection letter.   The Court fails to understand under Ms. Blain's version why she would need to call Plaintiff to offer this encouragement when she had testified that during the interview phase she found him wanting in posture and lacking in neatness and detail.

13
The court infers from this perceived inconsistency that the purpose for the phone call must have been to offer Davis the position, and that her initial impressions of him at the interview must have been--contrary to her testimony--rather favorable.   Thus, the court concludes that Blain must have been "impressed with Plaintiff's credentials and later decided not to hire him upon further reflection," implying that illegitimate considerations caused Blain to change her mind.

14
We find that the district court clearly erred by failing to acknowledge or account for Blain's testimony that the purpose of her call was to determine whether Davis wanted to go through another interview.   We agree that if Blain had indicated in testimony that the essential purpose of her call was to advise Davis that he was still under consideration, as the district court suggests, and we, like the district court, accepted that testimony9 arguendo, this would raise doubts as to the credibility of her earlier assertions that she was unimpressed by his interview.   In other words, it would be questionable that Blain would call Davis merely to "offer ... encouragement," when she knew that among the many factors that she would consider in making her final evaluation10 was a relatively unfavorable interview.   In that case, we would certainly defer to the credibility determination of the district court.

15
We recognize that the district court is in a unique position to assess credibility.   In making our decision, however, we have access to the transcript, which the district court generally does not have in making its decision.   After a careful review of the transcript, we do not agree that a logical inconsistency exists between what Blain actually testified to--that she called regarding the issue of a second interview--and her unfavorable impression as to certain aspects of Davis' candidacy.   In stating that "she but called to advise Plaintiff that he was under consideration" and "to offer this encouragement," the district court appears in our view to have either overlooked or misapprehended a critical part of Blain's testimony.   Although Blain indeed testified that she told Davis that he was under consideration, the reason for her call, as she also stated, was to find out whether he wanted another interview.   We find nothing illogical or inconsistent about a prospective employer calling a job candidate (about whom the employer has some reservations) regarding the possibility of a second interview when that candidate is entitled as a matter of procedure to such interview.11

16
We reiterate that the court found Blain's testimony, comparing the qualifications of the applicants and finding Davis' qualifications inferior, to be "persua[sive]."  We also emphasize that the district court's ultimate finding for Davis was based upon one "crucial piece of evidence," in the absence of which it "might [have] be[en] persuaded by [Ms. Blain's] testimony."   We question whether the district court would have found for Davis if it had factored into the analysis the testimony that her purpose for calling was to ascertain whether a second interview would be required.12

IV. The Record Evidence

17
Our review of the evidence in its entirety reinforces our concerns about the district court's ultimate finding of discrimination.   The district court was apparently influenced, in part, by the fact that "few men had ever worked at the Yazoo County Welfare Department," and that the one male who has been continuously employed there "for most of the last five years" works as a supervisor rather than as a clerical worker.   The record reflects, however, that over a period of approximately five years, twenty-one vacancies have existed in the positions at issue in this case.   From the pool of qualified individuals who applied for those positions, 11.9% were males and 9.5% of hires13 were male.   The Supreme Court recently held, in a racial discrimination case, that the relevant statistical comparison, for purposes of identifying hiring practices that discriminate by having a disparate impact on white and nonwhite applicant groups, is between the percentage of qualified nonwhite applicants and the percentage of selected nonwhite applicants of the total applicant pool.   The Court stated:  "As long as there are no barriers or practices deterring qualified nonwhites from applying for [the relevant] positions, ... if the percentage of selected applicants who are nonwhite is not significantly less than the percentage of qualified applicants who are nonwhite, the employer's selection mechanism probably does not operate with a disparate impact on minorities."  Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 653, 109 S.Ct. 2115, 2123, 104 L.Ed.2d 733 (1989).

18
Based on the Wards Cove analysis, the relevant comparison in this case is clearly between the percentage of qualified male applicants of the entire applicant pool and the percentage of male hires from that pool.   Finding that the latter percentage is not "significantly less" than the former, we are not persuaded that the statistical evidence bolsters the district court's decision.   Davis has not, moreover, adduced evidence demonstrating that the paucity of male applicants may be attributed to any policy of discrimination at the Department.

19
The record also reflects that, although Davis met the educational requirements for the positions, the women that were ultimately selected for the positions demonstrated superior communicative skills and greater professionalism in their interviews.   Blain testified that eligibility workers are responsible for handling "a volume of paperwork related to establishing initial and/or continuing eligibility for [the] clients."   She noted that professional handling of the paperwork is important, because "we're just in a paperwork jungle at the Welfare Department and locating and finding documentation with ease ... is ... essential."   With respect to communication skills, she stated that "[a] person must communicate and must have the capability of ... working with people on a one-to-one basis and it goes hand-in-hand with getting information so that we can establish eligibility."   She stated that, in evaluating applicants, she would attach more importance to the ability to communicate and process information than to the applicants' transcripts or specific work history.

20
Blain stated that if the paperwork of the Department were in the "state" of Davis' application, "it would present a problem," among other things, "to the supervisor who was reviewing the case."   She had "some degree of concern," moreover, because Davis kept sunglasses on during the interview, such that she could not gauge by means of eye contact whether he understood her comments.   She also testified that he was not particularly responsive to her questions.14

21
The hires, by comparison, demonstrated greater professionalism and communicative skills than Davis.   Janice Reed, for example, was "most responsive" to Blain's questions, and convinced Blain that "she enjoyed working with [people], [and] she understood people...."  Moreover, "she was well organized" and persuaded Blain that, based upon past experience in which she "routinely handled three assignments simultaneously," she was capable of "master[ing] time management."  "She communicated tremendously well" and her application was "orderly."

22
Gloria Owens also demonstrated greater professionalism and interpersonal skills than Davis.   According to Blain, Owens "is a very professional person."  "She has a very professional appearance," "she [is] an outgoing person," and "[s]he communicate[s] well."   Her application was "[v]ery accurate" and "[n]eat."

23
Blain testified that Dorothy McCoy, who was promoted from within the Department and whose work habits and skills were known, "is extremely skilled in getting facts from people and she is one who gets documentation in record time."   According to Blain, "[w]hen work is presented to her, she goes on and follows through, and when she puts it aside she has done all of the work that she needed to do on that case...."  She "sets schedules for herself well," and "her time management and her work skills [are] very adequate."   Sammie Stuart, finally, was "very easy to communicate with," "is out-going" and conveyed during the interview that she "likes people."   She looked "very professional" for the interview and conducted herself professionally.

V. Conclusion

24
We have set out at some length the record evidence bearing on the existence of sexual discrimination in the Department's decisions not to hire Davis.   In our view there is compelling evidence, in an admittedly cold record, that those decisions were not motivated by any proscribed intent.   But because the district court saw the witnesses and heard the evidence, we remand the case to the district court with instructions to reconsider its prior conclusions in the light of this opinion.

25
VACATED and REMANDED with instructions.   Each party shall bear its own costs.

1
 An "eligibility worker" determines the initial and continuing eligibility of applicants for, and recipients of, welfare assistance

2
 Of the twenty-eight applicants common to both positions, twenty-three were females (twenty black, three white), and five (including Davis) were black males.   Of the thirteen additional applicants for the first position, twelve were black females and one was a white female

3
 A child support enforcement officer investigates complaints concerning failures to pay child support.   The officer works closely with attorneys in the Department to enforce the laws pertaining to child support.   To be considered for the position, a candidate must have either a bachelor's degree from an accredited college or university, or a combination of high school diploma (or GED) and sufficient related work experience

4
 The other two of the twenty-eight applicants considered for both of the August positions were the individuals hired for those positions

5
 Commentators have argued that black males should constitute a separate class, distinct from either males or blacks, in Title VII analysis.   See Note, Invisible Man:  Black and Male Under Title VII, 104 Harv.L.Rev. 749, 750 (1991);  see also Shoben, Compound Discrimination:  The Interaction of Race and Sex in Employment Discrimination, 55 N.Y.U.L.Rev. 793 (1980).   We decline to comment in this case on whether black males represent a protected subclass, because our review is limited to the findings of the district court.   The district court in this case found only sexual discrimination

6
 As the district court stated:  "According to Ms. Blain, the director, she was unimpressed with the condition of Plaintiff's application, with the white-outs therein, and with Plaintiff's bearing and appearance during the interview.   She stated that during the interview Plaintiff slouched and kept on dark sunglasses.   Ms. Blain further testified that all four hirees acquitted themselves in a manner superior to that of the Plaintiff.   According to Ms. Blain, the four hirees expressed themselves better, displayed more enthusiasm, and showed a greater affinity for following instructions and handling detailed applications."

7
 Blain testified that she spoke with Davis' sister on September 9 and spoke with Davis on September 10

8
 We note that an inconsistency exists in the testimony of Davis and his sister.   Davis' sister stated that after receiving Blain's telephone call, she went to find Davis, who then called Blain and was offered the position that same day.   Davis, on the other hand, testified that he was not able to reach Blain on the day that his sister received the call, and was not actually offered the position until the following day

9
 As a starting point for its analysis, the district court appears to have accepted Blain's version of the conversation with Davis (that she apprised him that he would be given consideration without having to have another face-to-face interview)

10
 Blain testified that she "use[s] the application itself [and] the interview with the person, ... the work experience, ... [and the] transcripts and evaluate[s] the four and make[s] [her] selection...."

11
 We infer from the record that as a matter of ordinary procedure, the Department grants an automatic interview to every job applicant

12
 We note, furthermore, that even if an offer was made and Blain subsequently changed her mind, this would not indicate the existence of sexual discrimination.   Apparently, the district court has assumed that the alleged change of mind would more likely be the result of an illegitimate influence, such as sexual discrimination, than the result of an objective reevaluation of legitimate factors in the hiring decision.   We find no support, either intuitively or in the record, for this assumption

13
 We note that the 9.5% figure reflects the hiring of two males, the second of whom was not hired until June 1988, two months after Davis filed this action.   The percentage, therefore, may be somewhat misleading.   We recognize, however, that the statistical sample may be too small to be meaningful

14
 Blain's impressions of Davis were corroborated by Kathy Bowden, an eligibility worker at the Department who assisted Davis when he once applied for benefits.   Bowden testified that Davis did not communicate very effectively, and that "[i]t took a while" to get the information that she needed.   She stated that when she found that Davis was applying for a position as an eligibility worker, she "didn't think that he could fill out the forms and get an application approved as an [eligibility worker]" and communicated to Blain that she "just didn't think that he would be a good [eligibility worker]."


J-A13002-18

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

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RYAN NYE                                   :
                                               :
                       Appellant               :   No. 1268 WDA 2017

        Appeal from the Judgment of Sentence Entered on May 15, 2017
      In the Court of Common Pleas of Beaver County Criminal Division at
                        No(s): CP-04-CR-0002186-2015

BEFORE: OLSON, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.:                                  FILED JULY 27, 2018

        Appellant, Ryan Nye, appeals from the judgment of sentence entered

on May 15, 2017. We quash this appeal.

        On January 10, 2017, Appellant entered an open guilty plea to

aggravated assault and persons not to possess firearms.1         The trial court

scheduled Appellant’s sentencing hearing for March 1, 2017.            Trial Court

Order, 1/10/17, at 1.

        As the trial court noted, prior to sentencing (and while Appellant was

represented by counsel), Appellant filed a pro se motion to withdraw his guilty

plea. Trial Court Order, 3/1/17, at 1. Further, during the scheduled, March

1, 2017 hearing, Appellant “restated his desire [to withdraw his guilty plea] in

open court.” Id. As a result, the trial court did not proceed to sentencing

____________________________________________

1   18 Pa.C.S.A. §§ 2702(a)(1) and 6105(a)(1), respectively.
J-A13002-18

and, instead, issued a rule upon the Commonwealth to show cause as to why

Appellant’s motion should not be granted. Id.

       On April 10, 2017, the trial court held a hearing on Appellant’s motion

to withdraw his plea. The trial court denied Appellant’s motion on April 17,

2017 and, on May 12, 2017, the trial court sentenced Appellant to serve an

aggregate term of 11 ½ to 30 years in prison for his convictions.2

       On May 24, 2017 – while Appellant was still represented by counsel –

Appellant filed a pro se motion to withdraw his guilty plea. In accordance with

Pennsylvania Rule of Criminal Procedure 576(A)(4), the prothonotary

“accepted the document for filing, time stamped it with the date of receipt,

made a docket entry reflecting the date of receipt, and placed the document

in the criminal case file.”         Letter from Beaver County Prothonotary to

Appellant’s Counsel, 5/25/17, at 1; see also Pa.R.Crim.P. 576(A)(4). Further,

the prothonotary forwarded the document to Appellant’s trial counsel and the

attorney for the Commonwealth. Letter from Beaver County Prothonotary to

Appellant’s Counsel, 5/25/17, at 1; see also Pa.R.Crim.P. 576(A)(4).

       The trial court took no action on Appellant’s pro se filing and Appellant

did not file a timely notice of appeal from his judgment of sentence.

       On May 26, 2017, Appellant’s trial counsel petitioned the trial court for

leave to withdraw, as Appellant’s pro se post-sentence motion accused him of

providing ineffective assistance by coercing Appellant’s plea. See Petition to
____________________________________________

2 On May 15, 2017, trial court issued an amended sentencing order, which
corrected certain clerical errors.

                                           -2-
J-A13002-18

Withdraw, 5/26/17, at 1; see also Appellant’s Pro Se Post-Sentence Motion,

5/24/17, at 1 and 3. That same day, the trial court granted counsel’s petition

to withdraw and, in the same order, appointed the public defender’s office to

represent Appellant. Trial Court Order, 5/26/17, at 1.

      Over three months later – on August 28, 2017 – Appellant’s counsel

filed a “supplemental motion to withdraw guilty plea.”        Within this motion,

Appellant’s counsel claimed that the case could not move forward because the

trial court did not rule on Appellant’s pro se post-sentence motion. Appellant’s

Supplemental Post-Sentence Motion, 8/28/17, at 1.            The trial court then

purported to issue an order on August 28, 2017, declaring that Appellant’s

motion to withdraw his guilty plea was denied.            See Trial Court Order,

8/28/17, at 1. Appellant filed a notice of appeal on September 5, 2017.

      Appellant raises one claim to this Court:

        Did the trial court abuse [its] discretion when [it] refused to
        allow [Appellant] to withdraw his guilty plea prior to
        imposition of sentence?

Appellant’s Brief at 3.

      “Preliminarily, we address the timeliness of the instant appeal. Since it

implicates   our jurisdiction,   we   may   raise   the     issue   sua   sponte.”

Commonwealth v. Duffy, 143 A.3d 940, 942 (Pa. Super. 2016) (citations

omitted). As this Court has explained:

        Ordinarily, when a post-sentence motion is filed, an appellant
        has [30] days from the denial of the post-sentence motion
        within which to file a notice of appeal. However, by the
        explicit terms of [Pennsylvania Rule of Criminal Procedure]

                                      -3-
J-A13002-18

         720(A)(2), the provision allowing [] 30 days from the denial
         of post-[sentence] motions is contingent upon the timely
         filing of a post-[sentence] motion. In order for the denial of
         post-sentence motions to become the triggering event, it is
         necessary that the post-sentence motions be timely filed.
         Absent a timely filed post-sentence motion, the triggering
         event remains the date sentence is imposed.

Commonwealth v. Millisock, 873 A.2d 748, 750 (Pa. Super. 2005) (internal

quotations, citations, emphasis, and corrections omitted).

      In this case, Appellant’s pro se post-sentence motion was a legal nullity.

See Commonwealth v. Reid, 117 A.3d 777, 781 n.8 (Pa. Super. 2015) (pro

se post-sentence motion while represented by counsel is a legal nullity); see

also Commonwealth v. Ellis, 626 A.2d 1137, 1139 (Pa. 1993) (“there is no

constitutional right to hybrid representation either at trial or on appeal”);

Commonwealth v. Pursell, 724 A.2d 293, 302 (Pa. 1999) (“[w]e will not

require courts considering PCRA petitions to struggle through the pro se filings

of [petitioners] when qualified counsel represent[s] those [petitioners]”);

Commonwealth v. Ruiz, 131 A.3d 54, 56 n.4 (Pa. Super. 2015) (the

defendant’s “pro se motion to modify sentence . . . was a legal nullity . . .

[because] he was represented by counsel” at the time); Pa.R.Crim.P. 576 cmt.

(Rule 576(A)(4)’s “requirement that the clerk time stamp and make docket

entries of the filings in these cases only serves to provide a record of the filing,

and does not trigger any deadline nor require any response”). Thus, Appellant

did not file an effective post-sentence motion until August 28, 2017, more

than three months after his judgment of sentence was pronounced.               See

                                       -4-
J-A13002-18

Appellant’s Supplemental Post-Sentence Motion, 8/28/17, at 1. As Appellant’s

post-sentence motion was untimely, Appellant was required to file his notice

of appeal within 30 days of the pronouncement of his judgment of sentence.

Appellant filed his notice of appeal on September 5, 2017 – almost four

months after his judgment of sentence was entered. Appellant’s notice of

appeal was thus patently untimely and we lack jurisdiction over this appeal.

     Appeal quashed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/27/2018

                                    -5-


                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT

                               No. 12-4509

UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

RODNEY LUCAS,

                Defendant – Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. James C. Dever III,
Chief District Judge. (4:11-cr-00071-D-1)

Argued:   September 20, 2013                 Decided:   October 18, 2013

Before TRAXLER, Chief Judge, DIAZ, Circuit Judge, and Gina M.
GROH, United States District Judge for the Northern District of
West Virginia, sitting by designation.

Affirmed by unpublished opinion. Judge Diaz wrote the opinion,
in which Judge Groh joined.       Chief Judge Traxler wrote a
separate opinion concurring in the result.

ARGUED:   Stephen Clayton Gordon, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant.     Joshua L.
Rogers, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal
Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh,
North Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

                                2
DIAZ, Judge:
      Rodney Lucas appeals the 228-month prison sentence imposed

by   the   district     court    following    his    guilty    plea       to    being    a

convicted felon in possession of a firearm and ammunition, in

violation    of    18   U.S.C.    §§ 922(g)(1),       924.     On    appeal,         Lucas

contends that the district court procedurally erred in applying

a four-level enhancement under the U.S. Sentencing Guidelines

(“U.S.S.G.”)       § 2K2.1(b)(6)(B)       because     he     did    not    possess       a

firearm    in   connection      with    another     felony   offense.           He    also

argues that the sentence was substantively unreasonable.                               For

the reasons that follow, we reject these arguments and affirm.

                                         I.

                                         A.

      On October 13, 2009, a confidential informant told police

in Washington, North Carolina that Lucas, a convicted felon, was

gathered with several others near a Washington residence and was

in possession of a firearm.             When police officers arrived at the

scene,     Lucas   fled   on     foot   and   ran    into    the    home       of    Helen

Guthrie.     Once inside, Lucas hid a .357-magnum revolver in the

freezer.     The police followed Lucas into the house and found six

rounds of .357-magnum ammunition on his person.                     After arresting

Lucas, officers retrieved the firearm from the freezer.

                                          3
        The police later obtained and executed a warrant to search

Lucas’s     house,     where      they    found,         inter          alia,   35    rounds    of

hollow-point ammunition.

      A grand jury charged Lucas in a two-count indictment with

possessing     a    firearm      (Count       One)       and       ammunition        (Count   Two)

after     having       been      convicted          of        a     crime       punishable     by

imprisonment for a term exceeding one year, in violation of 18

U.S.C. §§ 922(g)(1), 924.                Lucas pleaded guilty to both counts

without a plea agreement.

                                              B.

      The     Presentence        Investigation            Report         (“PSR”)      calculated

Lucas’s     criminal      history       category         at       VI.     It    recommended     an

adjusted      offense          level     of    21,        reflecting            a     four-level

enhancement pursuant to U.S.S.G. § 2K2.1, which applies when a

defendant      “used      or    possessed      any        firearm         or    ammunition     in

connection         with        another        felony              offense.”             U.S.S.G.

§ 2K2.1(b)(6)(B).

      The government moved for an upward departure pursuant to

U.S.S.G. § 4A1.3(a)(1), which authorizes an upward departure if

the   court    believes        the     defendant’s        criminal          history     category

“substantially         under-represents                 the         seriousness         of     the

defendant’s        criminal       history          or     the       likelihood         that    the

defendant will commit other crimes.”                          Lucas objected, requesting

                                               4
the   court      sentence      him    within      the     Guidelines         range      on     both

counts, to run concurrently or partially concurrently with an

undischarged         state    sentence.        He    argued      that        a   more     lenient

sentence was appropriate in light of his age 1 and the fact that

his   last       probation      violation         was     approximately            five      years

earlier.

      The       district       court       determined           that       the      four-level

enhancement under U.S.S.G. § 2K2.1(b)(6)(B) was appropriate.                                    It

found that Lucas             committed     the    felony       common        law    offense      of

obstruction of justice when he hid the revolver in the freezer,

and that his illegal possession of a firearm facilitated that

offense.         In the alternative, the court found that Lucas was

guilty     of    a   felony     for    breaking         into    Guthrie’s          home.        The

resultant        offense      level      of    21,       in     combination          with      the

applicable criminal history category of VI, yielded an advisory

Guidelines range of 77 to 96 months in prison.

      The       sentencing     court       then     departed         upward        pursuant      to

U.S.S.G.        § 4A1.3(a)(4)(B).             The       court        found       that     Lucas’s

extensive criminal record warranted a ten-level increase in the

offense     level,     raising       the   total        from    21    to     31.        With    the

adjusted offense level, the advisory Guidelines range increased

to 188 to 235 months.

      1
          Lucas was forty-one years old at sentencing.

                                              5
       The court also concluded that consecutive sentences were

appropriate under U.S.S.G. § 5G1.2(d).            The court explained the

need   for   a   lengthy   sentence    in    terms   of   Lucas’s   extensive

criminal record:

       [T]his tale of the life of crime of Rodney Lucas began
       at age 17. Here we are 59 convictions later . . . .
       . . . .
       He has eight felony drug convictions, one felony
       assault by strangulation conviction, one habitual
       felon conviction.     He’s committed crimes, serious
       crimes, while on probation.    He has committed crimes
       within months or even weeks of being released from
       prison.
       Nothing--nothing other than incarceration seems to
       slow down Rodney Lucas when it comes to being a
       criminal. He truly is a one man crime wave. It’s who
       he is, it’s what he does.     And sadly . . . I think
       it’s who [he will] always be.

J.A. 85-86.

       The court imposed a 120-month sentence on Count One and a

108-month sentence on Count Two, to be served consecutively for

a total term of 228 months.      This appeal followed.

                                      II.

       Our review of criminal sentences “is limited to determining

whether they are ‘reasonable.’”            Gall v. United States, 552 U.S.

38, 46 (2007).      Our first step is to ensure that the district

court committed no significant procedural error, such as failing

to properly calculate the advisory Guidelines range.                  United

States v. Rivera-Santana, 668 F.3d 95, 100 (4th Cir.), cert.

                                       6
denied, 133 S. Ct. 274 (2012).                      “In assessing a challenge to a

sentencing court’s application of the Guidelines, we review the

court’s        factual    findings       for        clear     error    and    its   legal

conclusions de novo.”            United States v. Alvarado Perez, 609 F.3d

609, 612 (4th Cir. 2010) (internal quotation marks omitted).

     “Absent a significant procedural error, our next step is to

assess the substantive reasonableness of the sentence imposed.”

Rivera-Santana, 668 F.3d at 100.                         “In reviewing any sentence,

whether    inside,        just   outside,           or    significantly      outside   the

Guidelines       range,    we    apply     a       deferential      abuse-of-discretion

standard.”        United States v. Savillon-Matute, 636 F.3d 119, 122

(4th Cir. 2011) (internal quotation marks omitted).

                                           III.

                                               A.

                                               1.

     Lucas       first    claims    that       the       district   court    procedurally

erred     by    applying     a     four-level            enhancement   under     U.S.S.G.

§ 2K2.1.        He does not argue that obstruction of justice cannot

constitute “another felony” for purposes of the enhancement. 2

     2
       “Obstruction of justice is a common law offense in North
Carolina” and encompasses “any act which prevents, obstructs,
impedes or hinders public or legal justice.” In re Kivett, 309
S.E.2d 442, 462 (N.C. 1983) (internal quotation marks omitted).
The offense is a felony if the conduct is “‘infamous, done in
(Continued)
                                               7
Rather,    he   disputes   whether       a    felon   in   possession’s     act    of

getting rid of the firearm can ever be “in connection with” a

felony     obstruction      of     justice        within        the   meaning      of

§ 2K2.1(b)(6)(B).

      A party possesses a firearm “in connection with” another

offense if the firearm “facilitated, or had the potential of

facilitating” the other offense.               U.S.S.G. § 2K2.1 cmt. n.14(A).

A firearm satisfies this requirement when it had “some purpose

or effect with respect to the other offense . . . including if

the   firearm    was    present    for       protection    or    to   embolden    the

actor.”    United States v. Jenkins, 566 F.3d 160, 162 (4th Cir.

2009)    (internal     quotation   marks       and    citation    omitted).       The

requirement is not satisfied if the firearm is present by mere

“accident or coincidence.”           United States v. Blount, 337 F.3d

404, 411 (4th Cir. 2003) (internal quotation marks omitted).

      The district court concluded that possession of a firearm

can     facilitate     obstruction       of     justice     when      the   conduct

underlying the obstruction consists of “ditching” the weapon to

avoid detection by law enforcement.                   In the district court’s

secrecy and malice, or with deceit and intent to defraud.’”
State v. Taylor, 713 S.E.2d 82, 88 (N.C. Ct. App. 2011) (quoting
N.C. Gen. Stat. § 14-3(b)).    In this case, the district court
found that Lucas hid the revolver with deceit and intent to
defraud, i.e., to prevent the police from discovering his
unlawful possession of a firearm.

                                         8
view,      when    a    felon   possesses      a     firearm,    it    is   the   illegal

presence      of       the   weapon   itself        that   motivates     the   felon   to

discard it.            And without its illegal presence, the obstruction

would not be possible.                    Cf. United States v. Nale, 101 F.3d

1000, 1004 (4th Cir. 1996) (finding the defendant possessed a

gun   in    connection        with    a    sexual    assault    because     the   offense

“would not have been possible but for the weapon”).

      In sum, the district court found that “[t]he .357 revolver

was the very subject of this obstruction of justice” and thus

“facilitated the other offense.”                    J.A. 70.     We may reverse this

finding only for clear error, which requires that we be “left

with the definite and firm conviction that a mistake has been

committed.”            United States v. Dugger, 485 F.3d 236, 239 (4th

Cir. 2007) (internal quotation marks omitted).                              Although the

evidence     in    the       record   did    not     compel    the    district    court’s

finding, we cannot say the court’s conclusions were implausible

in light of the record as a whole.                    Under such circumstances, we

do not disturb the district court’s finding, even though we may

well have weighed the evidence differently.                          See United States

v. Hall, 664 F.3d 456, 467 (4th Cir. 2012); cf. United States v.

Hampton, 628 F.3d 654, 663-64 (4th Cir. 2010) (affirming the

district court’s finding that the defendant’s possession of a

firearm, which he never exposed to officers, facilitated the

                                              9
felony of assaulting a police officer while resisting arrest

when it was a close call). 3

                                                  2.

        Lucas      also   argues       that       applying        the    enhancement        to     his

conduct         would           contravene             the    purpose           of         U.S.S.G.

§ 2K2.1(b)(6)(B).                We    have       previously            recognized        that     the

enhancement serves to “ensure that a defendant receives more

severe       punishment         if,    in    addition        to    committing        a     firearms

offense      within       the    scope       of    § 2K2.1,        he    commits      a    separate

felony offense that is rendered more dangerous by the presence

of a firearm.”            Blount, 337 F.3d at 406.                     Lucas asserts that he

rendered the firearm less dangerous by discarding it.

        However,       the      relevant          question        is     not   whether           Lucas

rendered        the    firearm        less    dangerous           by     discarding        it,     but

whether      the      other     felony--obstruction               of    justice--became           more

dangerous as a result of his conduct.                              Had Lucas successfully

concealed his unlawful possession from law enforcement by hiding

the revolver and otherwise managed to elude the officers, he

could       have   retrieved          the    weapon      after         the   police       departed.

Moreover, leaving an unsecured firearm in someone’s home without

        3
       Because we find that the                        district court did not clearly
err in finding that Lucas’s                             act of discarding the gun
facilitated a felony obstruction                        of justice, we do not address
the district court’s alternative                        finding that Lucas was guilty
of breaking into Guthrie’s house.

                                                  10
the    homeowner’s           knowledge        hardly      renders       the     weapon       less

dangerous.

       Nor       are    we   persuaded      by    Lucas’s       argument       that    applying

§ 2K2.1(b)(6)(B)             on     these     facts       will        expose     nearly        all

§ 922(g)(1) defendants to the enhancement.                             The fact that most

felons       in     possession      attempt       to     conceal       evidence       of     their

misconduct          (even     if    true)      should      not     immunize       them        from

punishment.             Moreover,     district         courts    must    make     independent

findings on all of the elements of obstruction of justice before

applying          the   enhancement,        dispelling          any     concern       that     the

enhancement will apply to felons in possession as a matter of

course.           Cf. United States v. Dunningan, 507 U.S. 87, 96-97

(1993), abrogated on other grounds, United States v. Wells, 519

U.S.       482    (1997)     (the    fact     that     “the     trial    court     must       make

findings to support all the elements of a perjury violation in

the specific case” obviates the concern that courts will enhance

sentences under U.S.S.G. § 3C1.1 for obstruction of justice as a

matter of course).

       In        sum,   we   decline     to      set    aside    the     district          court’s

application of § 2K2.1(b)(6)(B) to these facts. 4

       4
       The district court also made clear its intent to impose
“the exact same sentence on each of the[] counts” in light of
the factors enumerated in 18 U.S.C. § 3553(a).   J.A. 101.   We
find no abuse of discretion in the district court’s alternative
sentence.   As a result, any error the district court may have
(Continued)
                                                 11
                                              B.

     Lucas also contends that his 228-month prison sentence is

substantively      unreasonable.              Specifically,    he     objects       to   the

district    court’s      decision        to    upwardly     depart    under     U.S.S.G.

§ 4A1.3    based    on    his      criminal     history.      He     argues    that      the

district court improperly focused on the sheer number of past

convictions without sufficiently considering the fact that many

of those convictions were for motor vehicle offenses.                           He also

claims     that    incarceration          is       an   ineffective     deterrent        to

recidivism,       and    he   is    an   unlikely       recidivist     in     any    event

because of his age.

     When    reviewing        a     departure       under   § 4A1.3,    “we     consider

whether the sentencing court acted reasonably both with respect

to its decision to impose such a sentence and with respect to

the extent of the divergence from the sentencing range.”                            United

States v. McNeil, 598 F.3d 161, 166 (4th Cir. 2010) (internal

quotation marks omitted).

     At    sentencing,        the    district       court   waded    through     Lucas’s

extensive criminal record and carefully recounted the severity

committed in imposing the § 2K2.1 enhancement was harmless. See
Savillon-Matute, 636 F.3d at 123-24; see also United States v.
Hargrove, 701 F.3d 156, 163 (4th Cir. 2012), cert. denied, 133
S. Ct. 2403 (2013) (rejecting a narrow application of assumed
error harmless error review).

                                              12
of his past convictions.            See J.A. 79-83.        It noted that Lucas

had committed several violent offenses and underscored that his

history    “appears     only   to    be    getting    worse.”      Id.     at   84.

Additionally,     the    court      considered     Lucas’s     numerous     parole

violations, and noted that past efforts by the North Carolina

criminal justice system to show Lucas leniency failed to stop

him from engaging in criminal conduct.                    It found that only a

lengthy sentence would deter Lucas and protect the community.

In these circumstances, the 228-month sentence is substantively

reasonable.

                                          IV.

     For    the   reasons      stated     above,     we   affirm   the    sentence

imposed by the district court.

                                                                          AFFIRMED

                                          13
TRAXLER, Chief Judge, concurring in the result:

       I would affirm the sentence on the alternative basis given

by    the     district        court,     namely      that    the      § 2K2.1(b)(6)(B)

enhancement was proper because Lucas committed felony breaking

or    entering    when       he     entered   Guthrie’s      home     and   because    his

possession       of    the    firearm     facilitated       that    felony.       For    a

breaking or entering to be felonious under North Carolina law,

the unprivileged entry must be made with the intent to commit

another      felony    or     larceny.        See   N.C.G.S.    §   14-54(a);     United

States v. Carr, 592 F.3d 636, 644 (4th Cir. 2010).                          Lucas argues

that the district court clearly erred to the extent that it

found that Lucas entered Guthrie’s residence with the intent to

obstruct justice by hiding the gun there.                       I believe, however,

that it was reasonable for the court to infer that Lucas, a

felon, fled from the police because he did not want to be caught

with the gun and that he entered Guthrie’s home with the intent

of hiding the gun.

       Even assuming arguendo that the district court procedurally

erred   in    applying        the    enhancement,     however,      I   agree   with    my

colleagues that any error was harmless.                        See ante at 11 n.4.

The    district       court       unequivocally     stated     that     its   choice    of

sentence did not depend on the correctness of the enhancement,

and    the   court     declared        that   it    would    select     the   very    same

sentence were we to hold that the enhancement did not apply.

                                              14
Especially      considering      Lucas’s      truly       awful    pattern       of

recidivism, we have no reason whatsoever to doubt the district

court on this point.          Accordingly, so long as the alternative

sentence was not an abuse of discretion, any error in applying

the enhancement was harmless.              See United States v. Savillon-

Matute, 636 F.3d 119, 123 (4th Cir. 2011) (holding that when a

district court gives an alternative, substantive basis for a

sentence to account for the contingency that the district court

has   committed   procedural       error,    the    alternative     sentence    is

reviewed for abuse of discretion, and if it is found to be

reasonable, then any remaining, alleged procedural errors are

presumed to be harmless); see also United States v. Hargrove,

701 F.3d 156, 162 (4th Cir. 2012) (rejecting the argument that

Savillon-Matute should “be read narrowly to apply only under the

unique circumstances of that case”), cert. denied, 133 S. Ct.

2403 (2013).

      I do not believe that the alternative sentence constituted

an abuse of discretion.            The court discussed in great detail

Lucas’s criminal record of 59 convictions, which included many

violent crimes.         The court also noted that Lucas had violated

his   probation    on    several     occasions      and   found   that   he    was

“exceptionally    violent”     and    “a    committed     drug    dealer”     whose

proclivity for crime had only increased over the years.                       J.A.

86.     These     observations       were    well     founded     and,   if     the

                                       15
§ 2K2.1(b)(6)(B) enhancement did not apply, a significant upward

departure under U.S.S.G. § 4A1.3 would have been justified in

light of both the seriousness of Lucas’s criminal history and

the significant chance of his recidivism.

                               16