Her Majesty the Queen v. Junkert [Indexed as: R. v. Junkert]

103 O.R. (3d) 284

2010 ONCA 549

Court of Appeal for Ontario,

O'Connor A.C.J.O., R.P. Armstrong and Watt JJ.A.

August 12, 2010

Criminal law -- Dangerous driving causing death -- Impaired driving causing death -- Causation -- Accused having blood alcohol level of 130 and travelling at high rate of speed in residential area -- Accused striking and killing pedestrian -- Crown's reconstruction expert concluding victim was on sidewalk when struck whereas defence expert opining that impossible to determine whether victim on sidewalk or on road when hit -- Trial judge not resolving issue of whether pedestrian was on road or sidewalk when she was struck -- Trial judge entitled to conclude that causation proven regardless of victim's precise location at time of impact -- Appeal from conviction denied. [page285]

Criminal law -- Sentencing -- Dangerous driving causing death -- Impaired driving causing death -- Accused having no prior criminal record -- Accused driving at high speed in residential neighbourhood and striking pedestrian -- Accused's breathalyzer readings being 130 milligrams per cent -- Sentence of five years' imprisonment for impaired driving causing death and three years concurrent for dangerous driving causing death affirmed on appeal -- Sentences imposed not outside range of sentences imposed in similar cases -- Trial judge not erring in declining to give accused credit for 28 months spent under strict bail conditions -- Given gravity of offence including victim's death and extensive property damage caused by accused's driving while impaired and at high rate of speed in residential area sentence of five years for first offender not unfit.

Criminal law -- Sentencing -- Pre-sentence report painting very negative picture of accused -- Cross-examination demonstrating report failing to include evidence regarding accused's genuine remorse including the report from accused's counselor and setting out incomplete employment history -- Judge's reasons demonstrating awareness of significant factual errors in pre-sentence report -- Probation officers should seek to present accurate balanced and independent account of offender's antecedents.

The accused failed to negotiate a gradual turn, mounted a curb, struck and damaged a parked vehicle, and knocked down a concrete pole. His vehicle was substantially demolished. In the course of those events, he struck a pedestrian and propelled her face-first into the side of the parked vehicle. She died almost instantly. The accused's breathalyzer readings were 130 milligrams of alcohol in 100 millilitres of blood. An accident reconstructionist testifying for the Crown opined that, at the point of impact, the accused was travelling at or above a speed of between 90 and 93 kilometres per hour. The defence expert testified that one could not determine whether the victim was on the sidewalk or on the road when she was struck. The accused was convicted of impaired driving causing death and dangerous driving causing death. He was sentenced to five years' imprisonment for the former offence and three years concurrent for the latter, and was prohibited from driving for five years. The accused appealed the convictions and the sentence.

Held, the appeals should be dismissed.

The impaired accused was driving significantly over the speed limit in a residential area, striking and killing the victim, who was a pedestrian. The trial judge did not need to resolve the contested factual issue of whether the victim was on the road or the sidewalk when she was struck by the accused's vehicle, as he was entitled to find that her precise location at the time of impact was not determinative of the issue of whether the accused's dangerous driving or impairment caused her death.

The pre-sentence report painted a very negative picture of the accused, including failing to set out his medical issues and failed to refer to a report from the accused's counselor stating that the accused was genuinely remorseful. Defence counsel cross-examined the probation officer who prepared the report and exposed the factual flaws in the report. A pre- sentence report should present an accurate, balanced and independent account of the offender's background and circumstances.

In sentencing the accused, the trial judge did not misapprehend the evidence of his speed or impairment. Further, the judge found that the accused had made [page286] only minimal attempts to find work while on bail and he noted that the accused was convicted of breaching the terms of his release order. After unsuccessfully applying to vary the terms of his bail shortly after that order was made, he made no subsequent effort to do so during the 28 months that he was on bail. The judge had the discretion to decline to give the accused credit for his strict bail. The sentence of five years was not unfit for a first offender and did not constitute a substantial and marked departure from the sentences ordinarily imposed on similar offenders for similar offences. While the sentence might be seen as a slight movement upwards, the increase, if there was one, was incremental and it quite properly continued the very gradual trend that has taken place in drinking and driving sentences in recent years.

APPEAL by the accused from the conviction entered by Wright J. of the Ontario Court of Justice dated January 15, 2009 and from the sentence imposed on April 27, 2009.

Cases referred to R. v. Hall (2007), 83 O.R. (3d) 641, [2007] O.J. No. 49, 2007 ONCA 8, 219 O.A.C. 251, 41 M.V.R. (5th) 8, 71 W.C.B. (2d) 921; R. v. Ramage, [2010] O.J. No. 2970, 2010 ONCA 488, consd Other cases referred to R. v. Downes (2006), 2006 3957 (ON CA), 79 O.R. (3d) 321, [2006] O.J. No. 555, 208 O.A.C. 324, 205 C.C.C. (3d) 488, 37 C.R. (6th) 46, 69 W.C.B. (2d) 12 (C.A.); R. v. Heaslip, [2001] O.J. No. 1043, 10 M.V.R. (4th) 220, 49 W.C.B. (2d) 347 (C.A.); R. v. Lindsay (2009), 97 O.R. (3d) 567, [2009] O.J. No. 2700, 2009 ONCA 532, 68 C.R. (6th) 279, 245 C.C.C. (3d) 301, 251 O.A.C. 1, 194 C.R.R. (2d) 1 [Leave to appeal to S.C.C. refused [2009] S.C.C.A. No. 540 and [2009] S.C.C.A. No. 541]; R. v. Niganobe, [2010] O.J. No. 2959, 2010 ONCA 508

Alan D. Gold, for appellant. Howard Leibovich and Heather Davies, for respondent.

The judgment of the court was delivered by

[1] O'CONNOR A.C.J.O.: -- The car being driven by the appellant struck and killed a woman who was jogging in a residential neighbourhood. The appellant's ability to drive was impaired by alcohol.

[2] The trial judge convicted the appellant of impaired driving causing death and dangerous driving causing death. He sentenced the appellant to five years' imprisonment on the first charge and three years concurrent on the second. In addition, the trial judge imposed a ten-year driving prohibition.

[3] The appellant appeals his convictions and sentence. I would dismiss the appeals.

Facts

[4] On November 29, 2006, at around 8:45 p.m., the appellant drove his Subaru Legacy westbound along North Lake Road in Richmond Hill. He was returning home from his girlfriend's [page287] house. It was dark outside, but there were street lights illuminating the roadway.

[5] North Lake Road runs generally east and west. In the area where the accident occurred, the road curves gently to the south, requiring westbound traffic to carry out a gradual left turn. There is a cement curb on the north edge of the road. To the north of the curb, there is a grassy area, then a sidewalk and then residential homes. The posted speed limit at the time was 50 kilometres per hour. The appellant lived in, and was familiar with, the area.

[6] As he drove westbound, the appellant failed to negotiate the gradual southward turn on North Lake Road. His car mounted the north curb, crossed the grassy area and went onto the sidewalk. While still travelling west, the appellant's car struck and damaged the rear of a Dodge Neon motor vehicle that was parked in the driveway of one of the residences. The appellant's car continued westerly and struck a substantial concrete street-lamp pole, knocking it down. The car then re- entered the travelled portion of North Lake Road and travelled a further distance before it came to a stop. The trial judge described the condition of the appellant's car as being "for all intents and purposes, demolished".

[7] The victim, Teresa Callaway, aged 37, lived on the north side of North Lake Road with her husband and four children. She was jogging that evening. During the course of the events described above, the appellant's car struck Ms. Callaway and propelled her face-first into the side of the Dodge Neon. She suffered massive injuries and died almost immediately.

[8] The police were called to the scene. The appellant was arrested and subsequently provided two breath samples. Blood alcohol readings of 130 milligrams of alcohol in 100 millilitres of blood were recorded on the certificate. A forensic alcohol toxicologist called by the Crown testified that at the time of the accident, the appellant's blood alcohol level would have been between 130 and 170.

[9] The Crown and the defence each called an accident reconstructionist. In the opinion of the Crown's witness, the appellant struck Ms. Callaway while she was on the sidewalk facing in a westerly direction. The witness opined that, at the point of impact, the appellant was travelling at or above a speed of between 90 to 93 kilometres per hour.

[10] The defence expert testified that the Crown's evidence was flawed. It was his opinion that the evidence at the scene was not conclusive, either as to the point of impact or the speed the appellant was travelling. In his view, it was not possible to [page288] determine accurately whether Ms. Callaway was on the road or on the sidewalk when the appellant's car struck her. In addition, the defence expert was of the view that the appellant's car could have been travelling at a much lower rate of speed than 90 to 93 kilometres per hour.

[11] The trial judge found that the appellant's ability to drive was impaired by alcohol at the time of the accident. He also found that the appellant's driving was dangerous in that it was a marked departure from the standard of care that a reasonable person would have observed in the appellant's situation.

[12] The trial judge concluded that the appellant's impaired state and his dangerous driving were significant contributing causes of Ms. Callaway's death.

[13] The trial judge did not make a finding as to the specific speed at which the appellant was driving at the time of the accident. Rather, he concluded that the appellant was travelling at a "significant speed" to have caused the massive damage to the Neon, the cement light pole, his own car and to Ms. Callaway.

[14] The trial judge also did not make a finding about whether the appellant struck Ms. Callaway on the road or on the sidewalk. In essence, he found it did not matter because in either case, he was satisfied that the appellant's impaired driving and dangerous driving were significant causes of Ms. Callaway's death.

The Conviction Appeal

[15] In oral argument, counsel for the appellant made only two submissions with respect to the conviction appeal. First, he argued that because the trial judge failed to resolve the competing theories of whether the appellant's car struck Ms. Callaway on the road or on the sidewalk, it was unreasonable for him to conclude that the appellant's impairment or his dangerous driving caused her death.

[16] The trial judge considered the issue of causation with respect to both the road and the sidewalk scenario. He reasoned as follows:

That scenario [impact on the sidewalk], however, does not constitute the only means or exclusive route to conviction on the facts of this case. An impaired ability driver is no more licensed to strike a pedestrian on the roadway than on the sidewalk. It is a matter of degree, and involves an appreciation and an analysis of all the circumstances. The precise location and movements of Mrs. Callaway at the time of the impact are not determinative of the issue of whether [the appellant's] impaired ability, [or] dangerous driving . . . caused her death. [page289]

[17] In my view, this line of reasoning was open to the trial judge. I see no basis to interfere.

[18] The appellant's second argument as to conviction was that the rule against multiple convictions arising out of the same delict precluded convictions for both impaired driving and dangerous driving. In view of this court's decision in R. v. Ramage, [2010] O.J. No. 2970, 2010 ONCA 488, the appellant has abandoned this ground of appeal.

The Sentence Appeal

[19] The trial judge sentenced the appellant to five years' imprisonment on the charge of impaired driving causing death and three years concurrent on the charge of dangerous driving causing death. He imposed a driving prohibition of ten years following the appellant's release from custody.

[20] The appellant raises three arguments with respect to sentence. He argues that the trial judge misapprehended certain facts, erred in failing to give the appellant credit for the time spent under a restrictive pre-trial bail order and erred in imposing a custodial sentence that exceeded the appropriate range.

(a) Factual findings

[21] The appellant argues that the trial judge sentenced the appellant based on facts that were not supported by findings he made in his reasons for convicting the appellant or by the evidence.

[22] In his reasons for sentence, the trial judge said, "[t] he motor vehicle reconstruction evidence indicates that [the appellant] was travelling at a speed estimated at between 90 to 93 kilometres per hour when he struck Teresa Callaway".

[23] The appellant points out that the trial judge did not make a finding of fact as to the specific speed the appellant was travelling in his reasons for conviction. Thus, he argues, the trial judge erred in sentencing the appellant by making a specific finding as to speed.

[24] I disagree. In his reasons for conviction, the trial judge found that the appellant was travelling at a "significant speed" having regard to the massive destruction he caused. Obviously, 90 to 93 kilometres is a significant speed in the location where this accident occurred. I do not consider the two findings -- "significant speed" and "90 to 93 kilometres per hour" to be inconsistent.

[25] In addition, as I read the trial judge's reasons for sentencing, not a great deal turns on his conclusion about a specific speed. He mentioned it once at the beginning of those reasons [page290] when he was setting out the facts and not again. Thereafter, he referred to the appellant travelling at a "significant speed", and noted as a potentially aggravating factor that the appellant was driving at almost twice the posted speed limit of 50 kilometres per hour, suggesting that he saw the two as interchangeable.

[26] I would not interfere with the sentence on the basis of the manner in which the trial judge addressed the speed issue.

[27] The appellant also argues that the trial judge erred by misapprehending the evidence about the level of the appellant's impairment. In his reasons for sentence, the trial judge referred to "the high alcohol readings" and the fact that the appellant operated a motor vehicle while he was "significantly impaired". The appellant submits that the readings of 130 milligrams of alcohol in 100 millilitres of blood are not "high alcohol readings" and that there was no evidence that the appellant was "significantly impaired".

[28] Again, I see no error. I am not convinced that much turns on the trial judge's use of the word "high" to describe the breathalyzer readings. The trial judge, who hears impaired driving cases on a regular basis, would be very aware that some accused have readings higher than those in this case. That said, a reading of 130 is "high" in the sense that it is well above the prescribed limit. The readings are what they are. I do not see any error in the trial judge's use of the word "high" to describe them.

[29] The appellant also argues that the trial judge overstated the appellant's level of impairment when in his reasons for sentence he described the appellant as being "significantly impaired". I disagree. In his reasons for convicting the appellant, the trial judge referred to several factors to support the conclusion of significant impairment. Most prominent, in my view, was the appellant's very dangerous driving that caused havoc in the area where he struck Ms. Callaway. In addition, a toxicologist called by the Crown testified that the appellant's blood alcohol level would have resulted in a decrease in alertness, a significant disruption in reaction time, impairment of visual tracking, a decrease in peripheral vision and an increased propensity to take risks.

[30] Further, a number of the appellant's comments or actions after the accident showed a lack of awareness of the circumstances in which he found himself. For example, when a person at the scene pointed out to him that there was a woman lying on the ground, the appellant responded that he was coming back from his girlfriend's house and that there was no one in the car with him. [page291]

[31] I am not persuaded the trial judge misapprehended the evidence as to the appellant's level of impairment.

[32] Next, the appellant argues that the trial judge erred in imposing sentence without determining whether the appellant struck Ms. Callaway on the road or on the sidewalk. I see no error. While impaired by alcohol, the appellant drove through a residential neighbourhood at a high rate of speed in an extremely dangerous manner. The consequence, Ms. Callaway's death, was enormous. Whether the appellant struck Ms. Callaway on the road or the sidewalk, this was a very serious offence. The trial judge quite properly treated it as such. I see no error in his failure to determine the point of impact.

(b) Pre-trial bail

[33] Next, the appellant argues that the trial judge erred in failing to give the appellant credit for the time the appellant spent under strict bail conditions awaiting trial.

[34] Following six days of pre-trial custody, the appellant was released on bail pending trial. Pursuant to the bail order, the appellant could only leave his house in the presence of his surety, his elderly father. He could not operate a motor vehicle and could not consume alcohol. This arrangement lasted for 28 months.

[35] This court has noted that the impact of pre-trial bail conditions can be severe. As a result, a sentencing judge may give an accused credit for time spent under pre-trial bail conditions. In R. v. Downes (2006), 2006 3957 (ON CA), 79 O.R. (3d) 321, [2006] O.J. No. 555 (C.A.), Rosenberg J.A. said, at para. 37, "[t]ime spent on stringent pre-sentence bail conditions, especially house arrest, is a relevant mitigating factor". Rosenberg J.A. pointed out, however, that while a sentencing judge must consider giving credit for the impact of pre-trial bail conditions, credit is not automatic, even where the offender has been subject to house arrest. A sentencing judge should consider the circumstances of a particular case and decide what credit, if any, should be given. When sentencing judges decide against giving credit, they should set out their reasons for the decision: see, also, R. v. Lindsay (2009), 2009 ONCA 532, 97 O.R. (3d) 567, [2009] O.J. No. 2700 (C.A.), at paras. 41-46, leave to appeal to S.C.C. refused [2009] S.C.C.A. No. 540 and [2009] S.C.C.A. No. 541.

[36] In this case, the appellant's counsel asked the trial judge to give the appellant credit for the 28 months the appellant spent under strict bail conditions. The trial judge considered the request, decided not to give credit and set out his reasons for his decision. [page292]

[37] The trial judge recognized that the appellant's bail conditions were "significantly restrictive". In declining the request for credit, the trial judge attached weight to a number of factors. The appellant was convicted of breaching a term of his bail order on one occasion. In addition, the appellant's efforts to find employment during the 28 months he was on bail were "far from overwhelming". During that time, he was employed for eight or nine months. Moreover, while the appellant was on bail, he sought some relaxation of his terms -- unsuccessfully -- only once, shortly after his arrest. During the last approximately two years he was on bail, the appellant did not seek an adjustment to any of his bail conditions.

[38] While others might have reached a different conclusion than the trial judge, I see no basis to interfere with the trial judge's exercise of discretion in denying the appellant credit for the pre-trial bail conditions. The trial judge considered the relevant circumstances and set out the reasons for his decision.

(c) The appropriate range

[39] Finally, the appellant argues that the sentence of five years' imprisonment is outside the range of sentences that courts impose for offences of impaired driving causing death for first offenders.

[40] I begin by noting that courts should be cautious in rigidly applying "a range" of sentences in cases such as this, involving impaired driving causing death. In R. v. Heaslip, [2001] O.J. No. 1043, 10 M.V.R. (4th) 220 (C.A.), in dismissing a Crown appeal from a sentence for two counts of impaired driving causing death and one count of impaired driving causing bodily harm, this court said [at para. 8]:

In R v. Linden [(2000), 2000 15854 (ON CA), 147 C.C.C. (3d) 299 (Ont. C.A.)], this Court also recognized that cases involving drinking and driving did not demonstrate a particular range of sentencing but rather that the sentences were driven by the almost "infinite variety of circumstances in which this offence can be committed".

[41] Clearly, sentences imposed by courts in earlier decisions provide guidance as to an appropriate sentence. However, appellate interference may only be justified if the sentence imposed at trial is demonstrably unfit. In R. v. Hall (2007), 2007 ONCA 8, 83 O.R. (3d) 641, [2007] O.J. No. 49 (C.A.), at para. 29, LaForme J.A. described the test as follows:

. . . appellate interference may only be justified if the sentence is demonstrably unfit; that is, the sentence imposed is "clearly unreasonable" or a "substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes." [page293]

[42] I am not satisfied that the five-year sentence imposed by the trial judge in this case is "clearly unreasonable". The trial judge recognized, correctly in my view, that the overriding sentencing principles in drinking and driving offences, particularly where death is involved, are denunciation and general deterrence.

[43] The trial judge considered the appellant's background, including the fact that he had no previous record, but concluded that the serious nature of the offence warranted a significant penitentiary term.

[44] There are a number of factors that make this offence serious. The appellant made a choice to drive his car while his ability was impaired. In doing so, he took the risk that his driving would endanger other members of the community. That risk materialized and the consequences were enormous. A family has been shattered. Teresa Callaway was killed. Her husband is left without a loving spouse. Her four young children will grow up without their mother. The sentence imposed should reflect the serious consequences that flowed from the appellant's decision to drive while impaired.

[45] While the appellant's blood alcohol level was not as high as that in some other cases, the way he drove his car, which can only be explained by his impairment, presented enormous risks to the lives and safety of others. The appellant drove through a residential neighbourhood at a sufficiently high rate of speed to cause a huge amount of property damage. His car careened off the roadway, seemingly out of control, hit another car which was parked in a residential driveway and knocked down a concrete lamppost. By the time the appellant's car finally stopped, it was a virtual wreck. In the process, the appellant struck and killed Ms. Callaway and did not appear to realize he had done so.

[46] In my view, a sentence of five years for this offence cannot be said to be "a substantial and marked departure" from the sentences ordinarily imposed on similar offenders for similar offences. In recent years, there has been an upward trend in the length of sentences imposed for drinking and driving offences. The reasons for this trend can be attributed to society's abhorrence for the often tragic circumstances that result when individuals choose to drink and drive, thereby putting the lives and safety of others at risk.

[47] The imposition of substantial penalties for drinking and driving offences sends an important message to individuals who are considering driving while their ability is impaired.

[48] While the length of sentences in cases of impaired driving causing death varies considerably, courts have imposed sentences approaching or similar to the five-year sentence under [page294] appeal in this case. In the recent case of Ramage, this court upheld a sentence of four years for impaired driving causing death. In R. v. Niganobe, [2010] O.J. No. 2959, 2010 ONCA 508, this court upheld a sentence of five years for impaired driving causing death. In Hall, this court upheld a sentence of four years and ten months for the same offence. In Hall and Niganobe, the offenders had previous related records. In Ramage, the offender did not.

[49] I recognize that sentences of four to five years for first offenders may be at the high end of sentences imposed by the courts to this point in time. That said, I do not think that a sentence of five years for this offence is unfit. Nor is it a significant departure from sentences previously imposed so as to warrant interference by this court. While the sentence in this case may be seen as a slight movement upwards, I am satisfied that the increase, if there is one, is incremental and that it quite properly continues the very gradual trend that has taken place over recent years.

[50] In the result, I would not interfere with the sentence.

(d) The pre-sentence report

[51] In dismissing the appeal, I do not want to be taken as in any way adopting or approving the pre-sentence report that was filed with the court at the time of sentencing.

[52] Prior to imposing sentence, the trial judge ordered a pre-sentence report. In his report, the probation officer painted a very negative picture of the appellant. He portrayed the appellant as a person who lacked remorse for what he had done, had a poor attitude towards work, had not pursued needed counselling and had "contempt for court orders".

[53] Fortunately, Mr. Herman, the appellant's counsel at trial, cross-examined the probation officer to great effect. As to the appellant's remorse, the cross-examination showed that the probation officer relied almost entirely on the superficial observations of a single police officer whom the probation officer erroneously believed was the arresting officer. The probation officer did not speak to two other police officers who had more contact with the appellant and who testified at trial that the appellant was remorseful.

[54] The cross-examination also disclosed that the appellant had provided the probation officer with a report from a counsellor who had seen the appellant on several occasions after the accident. In his report, the counsellor indicated that "it was clear that remorse and regret and guilt very much occupied [the appellant's] mindset and contributed to the host of depressive [page295] symptoms". The probation officer made no reference to this part of the counsellor's report in the pre-sentence report.

[55] The probation officer also did not speak about the appellant's remorse to any of the individuals whose names the appellant provided to him. All of those people would have said that the appellant was remorseful. In short, the pre-sentence report presented a misleading and unfair picture about the issue of the appellant's remorse.

[56] The pre-sentence report was also deficient in other respects. For example, the report painted an incomplete picture of the appellant's work record. The report also implied unfairly that the appellant was somehow at fault for not continuing counselling after the accident.

[57] As I said above, it was fortunate that Mr. Herman's cross-examination exposed the deficiencies in the report. The trial judge recognized those deficiencies. He said:

Through the efforts of Mr. Herman, it became obvious that there were significant factual issues with the pre-sentence report as it related to the defendant's ability to work, his medical issues, and a number of other issues, and the court is indebted to have obtained a more clear picture of Mr. Junkert's situation over the course of the last two and a half to three years, and even before.

[58] Given the trial judge's approach to the pre-sentence report, it is understandable that the appellant did not raise the inadequacy of the report as a ground of appeal. I see no basis to interfere with the sentence on the basis of the report.

[59] That said, I raise the issue of the pre-sentence report here for two purposes. First, I think it is important to note the problems that became apparent with the pre-sentence report in this case so that hopefully similar problems do not arise in the future. A pre-sentence report is intended to be an accurate, independent and balanced assessment of an offender, his background and his prospects for the future. When preparing pre-sentence reports, probation officers must be thorough and fair and should canvass the relevant information before commenting on a particular issue.

[60] Clearly, it is an acceptable practice for probation officers to speak to arresting police officers and other police officers who may provide useful information about an offence and the offender. However, a pre-sentence report is intended to be more than a mere report of what the police think about the offence or the offender. Probation officers are professionals. They have an obligation to the court and the parties to canvass all of the relevant information and to provide a professional assessment that the court can rely upon. [page296]

[61] The second reason that I have raised the issue of the pre-sentence report is out of fairness to the appellant. The report painted the appellant as a person lacking genuine remorse when there is significant evidence to the contrary. I am concerned that the Parole Board, when considering the issue of the appellant's release, not be misled by the inaccuracies in the pre-sentence report. The Parole Board should look at the full record, which includes the testimony of all of the police officers at trial, the counsellor's report and the letters filed by the appellant at the time of sentencing which were not challenged by the Crown.

Disposition

[62] I would dismiss the appeal against the convictions. I would grant leave to appeal the sentence; however, I would dismiss that appeal.

Appeal dismissed.