Thaddious Rice, Appellant-Petitioner v. State of Indiana, Appellee-Respondent (2026)

MEMORANDUM DECISION

Case Summary

[1] Thaddious R. Rice appeals the denial of his petition for post-conviction relief (PCR) following his conviction for neglect of a dependent resulting in death (Neglect), a Level 1 felony, claiming that he received the ineffective assistance of both trial and appellate counsel. Rice argues that his trial counsel was ineffective for failing to object at trial to a witness's testimony and that appellate counsel was ineffective for failing to file a petition for transfer to our Supreme Court.

[2] We affirm.

Facts and Procedural History

[3] Following a six-day jury trial in March 2020, Rice was convicted of Neglect and was subsequently sentenced to forty years of incarceration. The facts and circumstances, as reported in Rice's direct appeal to this court, are as follows:

Rice and Jordan Hughes started dating in late January or early February 2017. Shortly thereafter, they moved in together along with Jordan's son, Jaxson Wheeler. On March 1, Rice was charged with Level 3 felony rape (for an incident alleged to have occurred in July 2016) and released on bond. See No. 82C01-1703-F3-1174.

On the morning of April 10, 2017, Jordan went to work and left ten-month-old Jaxson at home in the care of Rice, who was twenty-two. Jordan, Jaxson, and Rice lived in a second-floor apartment in Newburgh. Outside their apartment door, there were eight stairs leading down to a landing and then seven steps leading in the opposite direction the rest of the way down to the ground floor. See Exs. 9, 10. At the top of the stairs, twelve feet up from the ground floor, there was a ledge. See id.

Around 12:24 p.m., Rice arrived at Deaconess Gateway Hospital in Newburgh with Jaxson in his car. Ex. 7. Jaxson was “unresponsive, unconscious and not breathing.” Tr. Vol. III p. 218. Rice told an emergency-department nurse he had Jaxson in his car seat and lost his footing at the top of the stairs and “the child consequently fell down the stairs[,] and he had fallen too.” Id. Medical personnel started CPR and restored Jaxson's heartbeat at 12:34 p.m. Jaxson was then intubated and placed on a ventilator. At 1:18 p.m., Jaxson's temperature was measured as 90.4 degrees Fahrenheit, which was “abnormally low.” Tr. Vol. IV p. 20. Jaxson was also acidotic with a low blood pH of 6.99. Dr. Jonathan Weyer, an ophthalmologist, examined Jaxson and determined he had bilateral retinal hemorrhages.

At 1:52 p.m., Jaxson was transferred by ambulance to Deaconess Midtown Hospital in Evansville. There, a CAT scan showed a “severe traumatic brain injury,” including a subarachnoid hemorrhage (blood in the brain) and a subdural hematoma (blood between the skull and the brain). Tr. Vol. III p. 246. Based on the severity of the brain injury, Jaxson's doctors did not expect a full recovery and suspected he was braindead.

At Midtown, Jordan spoke to Rice about what happened to Jaxson. Rice said the key got stuck in the door and when he tried to pull it out, he tripped over the diaper bag and fell down the stairs. Id. at 207. Rice said he “hit the landing” and knocked himself out and when he “came to” he noticed Jaxson's car seat was upside down. Id. According to Rice, he flipped over the car seat and tried to give Jaxson CPR.

The next day, April 11, while Jaxson was still alive but not expected to survive, Rice spoke to the police at the hospital. The interview was recorded. See Ex. 8b. Rice initially said he lost his footing at the top of the stairs while holding Jaxson in the car seat, they both fell, and he dropped the car seat while attempting to catch his fall. Rice claimed he passed out from the fall and woke up at the bottom of the stairs to find Jaxson unresponsive and “paralyzed.” Id. Rice said he did not call 911 but rather drove Jaxson to the hospital.

After the police pressed Rice about his account of the incident, Rice became very emotional. Eventually, he said he placed Jaxson in his car seat on the ledge at the top of the stairs. Rice said he fell down the stairs and then saw Jaxson had fallen from the ledge. At the end of the interview, Rice apologized for changing his story. He explained he had been trying to impress Jordan's family by taking care of Jaxson and didn't know how he could tell them he set Jaxson on the ledge and he fell.

On April 12, doctors told Jordan there was nothing left they could do for Jaxson, and Jaxson died that day. Steve Lockyear, the Vanderburgh County Coroner, went to the hospital to investigate Jaxson's death. The coroner encountered Rice in a hallway and asked to speak to him. Rice declined “on the advice of his attorney.” Tr. Vol. IV p. 90. The coroner then tried to obtain information “from other sources.” Id. At some point, Rice “waved” to the coroner to follow him down the hallway. Id. at 91. Rice then told the coroner he had been “carrying [Jaxson] in a car seat” and Jaxson “fell down a flight of stairs, hit the landing and then turned 180 degrees and then came back down the other side of the stairs.” Id. at 127. The coroner “challenged” Rice's explanation, asking if Jaxson had fallen twelve feet over the ledge or down the stairs. Id. Rice, who “sob[bed],” maintained Jaxson had fallen down the stairs. Id. at 130. The coroner asked Rice if he had shaken Jaxson. Rice denied shaking Jaxson except for “on the way to the hospital just to try and wake [him] up.” Id. at 128.

An autopsy was performed on April 13. The forensic pathologist determined Jaxson's cause of death was cerebral edema (brain swelling) due to subdural and subarachnoid hemorrhages caused by blunt-force trauma. Ex. 15, p. 27; Tr. Vol. IV p. 156. The pathologist also observed retinal hemorrhages, a hemorrhage to the thymus gland, an abrasion at the base of the neck, two parallel abrasions at the right base of the neck over the right shoulder, a hemorrhage on the surface of a rib near where it connected to the spine, a hemorrhage in the small intestine, two bruises on the scalp, and bruises on the buttocks. See Tr. Vol. IV pp. 137-39. Although the forensic pathologist couldn't say for certain Jaxson's injuries were caused by “shaken baby [syndrome],” he didn't think Rice's explanation of Jaxson falling down the stairs in his car seat was “a good explanation” for his severe injuries. Id. at 159, 166.

Based on suspected child abuse, the hospital made a report to the Indiana Department of Child Services, which referred the case to Riley Hospital for Children. Dr. Tara L. Harris, a child-abuse pediatrician, reviewed Jaxson's medical records. She determined Jaxson's injuries “were the result of abuse and specifically abusive head trauma.” Tr. Vol. V p. 37. She observed Jaxson had “massive retinal hemorrhages in both of his eyes” and that “the pattern of retinal hemorrhages that Jaxson had with those multi-layers all the way to [the] periphery” “with the folding of the retina” is “almost exclusively see[n] in abusive head trauma” or “shaking of the head.” Id. at 36-37. Dr. Harris further opined Jaxson's subdural and subarachnoid bleeding was not consistent with a fall down the stairs or a fall from twelve feet because the bleeding was too “spread out” and on both sides of the brain. Id. at 34, 57-58. Finally, Dr. Harris observed Jaxson's “well below normal” temperature of 90.6 degrees indicated he had been injured “for several hours” and it would have taken “a couple of hours at least” for his pH to drop from 7.4 to the “very abnormal” number of 6.99. Id. at 31-32.

In September 2017, five months after Jaxson's death, the State charged Rice with murder and Level 1 felony neglect of a dependent resulting in death. A six-day jury trial began on February 25, 2020. Numerous witnesses testified for the State, including Jordan, many of the doctors and nurses who treated Jaxson, the coroner, and the child-abuse pediatrician. Specifically, Dr. Weyer, the ophthalmologist, testified over Rice's objection the injuries to Jaxson's eyes were not caused by falling down the stairs but rather by the “repetitive motion of [his] head going back and forth.” Id. at 17. The coroner, over Rice's objection, testified about what Rice told him in the hallway at the hospital.

The jury found Rice guilty of Level 5 felony reckless homicide as a lesser-included offense of murder and Level 1 felony neglect of a dependent resulting in death. The trial court entered judgment of conviction for the neglect count only. At the sentencing hearing, the State noted the rape charge was still pending against Rice. In addition, the State presented evidence Rice had been charged with Level 4 felony sexual misconduct with a minor a couple weeks after Jaxson's death (for an incident alleged to have occurred in November 2016). See No. 82C01-1704-F4-2446. Rice testified he was “sorry” and that what happened to Jaxson was a “tragic accident.” Tr. Vol. V p. 159. Defense counsel conceded the court could consider Rice's pending felony charges but asked the court to give them “very little weight” as Rice hadn't been convicted. Id. at 165-66. The trial court found two aggravators: (1) Rice had the care, custody, and control of Jaxson and (2) he has a “history of criminal activity” and “criminal problems” as evidenced by his convictions for Class C misdemeanor illegal transport of alcohol by a minor and Class A misdemeanor driving while suspended as well as his pending felony charges. Id. at 171-72. The court found one mitigator: Rice expressed remorse. The court sentenced Rice to the maximum term of forty years.

Rice v. State, No. 20A-CR-1193, at 2-7 (Ind. Ct. App. February 18, 2021) (mem).

[4] On direct appeal, Rice challenged the admission into evidence of statements that he made to the coroner, an ophthalmologist's testimony, the sufficiency of the evidence, the trial court's identification of a sentencing factor, and the appropriateness of his sentence. Id. at 8-14. A panel of this court affirmed, and Rice did not file a transfer petition for further review by our Supreme Court.

[5] Additional evidence presented at the jury trial is relevant to this appeal. Specifically, the victim's mother, Jordan, testified in response to questioning from the State that she spoke with Rice shortly before Jaxson's death about being pregnant again and possibly aborting the new child and that Rice was opposed to that idea:

Q. [Prosecutor] Okay. Um, was there any other significant event going on in-in the two of your lives immediately prior to Jaxson's injury?

A. [Jordan] Yes.

Q. What was that?

A. Found out I was pregnant.

Q. Okay. You had found out you were pregnant and, uh, that, uh, who was the father of that child?

A. Thaddious.

Q. Uh, did this, uh, cause any type of consternation between the two of you?

A. Yes.

Q. And what-what happened?

A. I was unsure if I wanted to keep the pregnancy.

Q. You had indicated to Mr. Rice that you were considering an abortion.

A. Yes.

Q. Okay. And how did he respond to that?

A. He told me that I was better off giving him the baby, um, and give him full custody. And that he would not allow me to kill his own child.

Q. And this argument, uh, began or, uh, [ ]approximately when in-in conjunction to Jaxson's injury?

A. It was the Friday before his accident.

Q. Um, you did not terminate that pregnancy, is that correct?

A. No, I did not.

Q. Okay. And ․ you subsequently had a-a child, ․ that is ․ the biological child of Thaddious Rice, is that correct?

A. Yes.

Trial Transcript Vol. V at 208-09.

[6] On August 1, 2023, Rice filed his third amended petition for post-conviction relief ¹ claiming, among other things, that his trial counsel was ineffective for not objecting to Jordan's testimony that she was considering an abortion. Rice further alleged that his counsel on direct appeal was ineffective for failing to seek transfer to our Supreme Court.

[7] At an evidentiary hearing on Rice's petition, Rice's lead trial counsel, Andrew Pittman, testified that he knew before the trial that Jordan would testify that she had considered abortion. Pittman and Rice's co-counsel decided not to challenge that anticipated testimony. Although Pittman did not specifically recall why he decided not to object to that evidence, he believed that the evidence “would ․ more likely reflect poorly on” Jordan and that it would have supported the defense's theory that Rice “wouldn't have knowingly or intentionally hurt” a child. PCR Transcript at 17, 30-32.

[8] Rice's appellate co-counsel, Thomas Dysert, testified that he worked with attorney Steven Ripstra on Rice's appeal, and that Ripstra authored Rice's appellate brief. Dysert recalled that Ripstra sent Rice a letter following this court's issuance of the opinion in the direct appeal, explaining that “there is no issue to use in a Petition to Transfer.” PCR Exhibit 3; PCR Transcript at 55-57. Dysert recalled that he believed that transfer “should have been sought” and “there was some genuine issues,” but he could not “recall specifically” what those issues were. PCR Transcript at 55, 61. Dysert confirmed that Ripstra believed “there was no issue ․ from which to seek transfer upon.” Id. at 56. The parties stipulated to the PCR court that Ripstra was unavailable to testify at the hearing due to a medical condition including being “currently on a ventilator.” Id. at 67-68.²

[9] Following the hearing, the PCR court issued findings of fact and conclusions of law on March 10, 2025, denying Rice's request for relief. The PCR court rejected Rice's claim that Pittman was ineffective for not objecting to Jordan's testimony regarding an abortion and entered the following conclusions in its order:

15. To prove ineffective assistance for failure to object, a defendant must prove that his objections would have been sustained, that the failure to object was unreasonable, and that he was prejudiced.

16. Counsel is given significant deference in choosing a strategy which, at the time and under the circumstances, he or she deems best. This proposition is especially true if counsel's failure to object was the result of trial strategy.

17. Here, Pittman testified that he learned of this issue during his pretrial investigation, knew it would likely come up at trial, discussed it with co-counsel, and chose not to object. Most importantly, [Jordan's] statement supported the defense's theory of innocence; therefore, not objecting was a reasonable trial strategy. As such, Petitioner has failed to demonstrate that trial counsel's representation fell below an objective standard of reasonableness under Strickland.

18. Furthermore, even if an objection to this testimony would have been sustained, Petitioner has not demonstrated that the result of his trial would have been different. [Jordan's] single comment, which was not mentioned again by other witnesses or the prosecution in the course of a six-day trial, was unlikely to have influenced the verdict when compared to the other evidence of guilt.

Id. at 117-18.

[10] As for Rice's appellate counsel, the PCR Court noted that there was a disagreement between Rice's counsel regarding whether to seek transfer and that Dysert “did not offer any explanation as to why the transfer petition was not sought.” Post-Conviction Appendix at 124. The court found “this error was not pursuant to any reasonable appellate strategy” but that Rice did not prove prejudice. Id. at 124-25.

[11] Rice now appeals.

Discussion and Decision

I. Standard of Review

[12] Post-conviction procedures do not afford the petitioner with a super-appeal. Williams v. State, 706 N.E.2d 149, 153 (Ind. 1999). Rather, they “create a narrow remedy for subsequent collateral challenges to convictions, challenges which must be based on grounds enumerated in the post-conviction rules.” Id. A petitioner who has been denied post-conviction relief appeals from a negative judgment and as a result, faces a rigorous standard of review on appeal. Dewitt v. State, 755 N.E.2d 167, 169 (Ind. 2001).

[13] Post-conviction proceedings are civil in nature. Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002). Thus, to prevail, a petitioner must establish his claims by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Stevens, 770 N.E.2d at 745. When appealing from the denial of a petition for post-conviction relief, a petitioner must convince this court that the evidence, taken as a whole, “leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court.” Stevens, 770 N.E.2d at 745. “In other words, the defendant must convince this Court that there is no way within the law that the court below could have reached the decision it did.” Id. It is only where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion, that its decision will be disturbed as contrary to law. Godby v. State, 809 N.E.2d 480, 482 (Ind. Ct. App. 2004), trans. denied. The post-conviction court is the sole judge of the weight of the evidence and the credibility of witnesses. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).

II. Rice's Ineffective Assistance of Counsel Claims

A. Trial Counsel

[14] Rice contends that Pittman performed deficiently by failing to object to Jordan's testimony that she had considered getting an abortion and to what Rice's response was when she told him. Rice maintains that had Pittman objected to that testimony, the trial court “would have had to sustain that objection because the testimony was not relevant and/or that probative value was substantially outweighed by the risk of unfair prejudice.” Appellant's Brief at 26.

[15] The benchmark for judging any ineffective assistance of counsel claim “must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 685 (1984). A successful claim for ineffective assistance of counsel must satisfy two components. Reed v. State, 866 N.E.2d 767, 769 (Ind. 2007). For the first component, the petitioner must establish that counsel's performance was deficient by demonstrating that counsel's representation “fell below an objective standard of reasonableness, committing errors so serious that the defendant did not have the ‘counsel’ guaranteed by the Sixth Amendment.” Id. “We recognize that even the finest, most experienced criminal defense attorneys may not agree on the ideal strategy or the most effective way to represent a client,” and therefore, under this component, we will assume that counsel performed adequately and defer to counsel's strategic and tactical decisions. Smith v. State, 765 N.E.2d 578, 585 (Ind. 2002). “Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective.” Id.

[16] For the second component, the petitioner must show that the deficient performance resulted in prejudice. Reed, 866 N.E.2d at 769. A petitioner may show prejudice by demonstrating that there is “a reasonable probability (i.e., a probability sufficient to undermine confidence in the outcome) that, but for counsel's errors, the result of the proceeding would have been different.” Id. (internal quotation omitted). A petitioner's failure to satisfy either component will cause the ineffective assistance of counsel claim to fail. See Williams, 706 N.E.2d at 154. Stated differently, “[a]lthough the two parts of the Strickland test are separate inquires, a claim may be disposed of on either prong.” Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind. 2006).

[17] Notwithstanding Rice's contention that Pittman was ineffective because he failed to object to Jordan's “irrelevant” and “emotionally charged” testimony, Appellant's Brief at 27, the testimony was brief in the context of a six-day trial, and even assuming that the evidence was not relevant, it was unlikely to sway the jury against Rice. To be sure, the testimony related primarily to Jordan's own decision regarding her pregnancy and Rice's desire to protect the unborn child. Moreover, the evidence of Rice's culpability in the child's death was overwhelming based on the physical evidence of abusive head trauma and Rice's inconsistent explanations for the injuries. In short, Rice failed to show that Jordan's testimony demonstrated that there was a reasonable probability of changing the outcome of the trial in light of the significant evidence of Rice's guilt. See Stevens, 770 N.E.2d at 747.

[18] Rice, however, further claims that his petition should have been granted because the PCR Court applied an incorrect standard for prejudice in ineffective assistance of counsel claims. Rice maintains that the PCR Court erroneously stated that that he failed to establish that “that the result of his trial could have been different.” Appellant's Brief at 27 (emphasis added). The post-conviction court's order, however, correctly determined that the applicable standard is that of a “reasonable probability,” and it repeated Strickland's explanation of that standard. PCR Appendix at 115. The PCR order shows that the correct standard was applied. For these reasons, we conclude that the post-conviction court did not clearly err in denying Rice's claim of ineffective assistance of trial counsel.

B. Appellate Counsel

[19] Rice argues that his appellate counsel was ineffective for failing to file a petition for transfer to our Supreme Court because a subsequent review of his challenge to the sufficiency of the evidence is no longer reviewable in federal court. Rice claims that appellate counsel's failure to seek transfer foreclosed “his ability to seek relief in federal court for a violation of his ․ constitutional rights.” Appellant's Brief at 18.

Ineffective assistance of appellate counsel claims generally fall into three basic categories. They are: “(1) denial of access to an appeal; (2) waiver of issues; and (3) failure to present issues well.” Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006). To show that counsel was ineffective for failing to raise an issue on appeal that results in waiver for collateral review, “the defendant must overcome the strongest presumption of adequate assistance, and judicial scrutiny is highly deferential.” Bieghler v. State, 690 N.E.2d 188, 194 (Ind. 1997). To evaluate the performance prong when counsel waived issues upon appeal, we apply the following test: (1) whether the unraised issues are significant and obvious from the face of the record and (2) whether the unraised issues are ‘clearly stronger than the raised issues. Id. If the analysis under this test demonstrates deficient performance, then we examine whether, “the issues which ․ appellate counsel failed to raise, would have been clearly more likely to result in reversal or an order for a new trial.” Reed, 856 N.E.2d at 1195. And we must consider the totality of an attorney's performance “to determine whether the client received constitutionally adequate assistance ․ [and] should be particularly sensitive to the need for separating the wheat from the chaff in appellate advocacy, and should not find deficient performance when counsel's choice of some issues over others was reasonable in light of the facts of the case and the precedent available to counsel when that choice was made.” Bieghler, 690 N.E.2d at 194.

[20] In rejecting Rice's claim that his appellate counsel was ineffective, the PCR Court's findings and conclusions provided as follows:

44. Dysert testified that he and Steven Ripstra handled Rice's direct appeal.

․

46. Dysert testified that he felt that the strongest issues for success were brought in the appeal.

46. Dysert testified that after they received notice that Rice's appeal was denied by the court of appeals, they discussed seeking transfer.

47. Dysert testified that while Ripstra felt that seeking transfer was not necessary, Dysert disagreed and wanted to file for transfer.

48. Dysert could not identify which appellate issues would have been raised on transfer, but conceded that they ultimately did not file seeking transfer to the Indiana Supreme Court.

PCR Appendix Vol. II at 113-14.

[21] The PCR Court concluded:

40. Dysert testified that he and Ripstra disagreed on whether seeking transfer was necessary. Other than the disagreement, Dysert did not offer any explanation as to why the transfer petition was not sought. Therefore, the Court finds that this error was not pursuant to any reasonable appellate strategy.

41. However, Petitioner fails to establish how this error prejudiced him. There are two reasons for this conclusion.

a. In Coleman v. State, the Indiana Court of Appeals held that when only state law claims are presented in the direct appeal, there is no prejudice for failure to seek transfer. 196 N.E.3d 731, 742 (Ind. Ct. App. 2022). Here, Petitioner's direct appeal included the following claims: (1) a violation of the right to counsel under the Indiana Constitution; (2) an erroneous evidentiary ruling; (3) sufficiency of evidence; (4) use of an improper aggravator; and (4) inappropriate sentence. These are all state law claims. Therefore, as in Coleman, because only state law claims were presented in the direct appeal, there is no showing of prejudice by failing to seek transfer.

b. Second, even if an appellate attorney fails to seek transfer, this alone does not necessarily procedurally default a future federal claim. In Clemons, the Indiana Court of Appeals held that a petitioner may still preserve a federal claim by (1) raising the federal claim in post-conviction relief, and then (2) seeking transfer after post-conviction relief was denied by the court of appeals. 967 N.E.2d at 522 (“But state remedies are yet available to Clemons regarding his Fifth Amendment claim. Specifically, if Clemons were to petition for transfer from the present postconviction decision, the alleged denial of his Fifth Amendment right to counsel would be before the Indiana Supreme Court when it considers the issues Clemons has raised in this appeal.”).

42. Hence, because Petitioner raised only state claims in his appeal and has not shown that any potential federal claims were defaulted by failure to seek transfer, the Petitioner has not demonstrated prejudice. Therefore, appellate counsel did not provide ineffective assistance of counsel.

Id. at 123-25.

[22] The Sixth Amendment to the United States Constitution entitles a criminal defendant to the effective assistance of counsel not only at trial but also during his first appeal as of right. Evitts v. Lucey, 469 U.S. 387, 396 (1985). Rice has already received appellate review of his direct appeal claims by this court. The United States Supreme Court has held that a criminal defendant has no constitutional right to counsel to pursue discretionary state appeals that incudes filing a petition for transfer to the Indiana Supreme Court, see Ind. Appellate Rule 57(H) (“the grant of transfer is a matter of judicial discretion”), and therefore a defendant cannot “be deprived of the effective assistance of counsel by his retained counsel's failure to file the application timely.” Wainwright v. Torna, 455 U.S. 586, 588 (1982).

[23] Moreover, we note that Rice has not identified any claims that he believed would succeed on transfer; nor has he set forth any basis under App. R. 57(H) for Supreme Court review. He also makes no attempt to show that his only federal claim—sufficiency of the evidence—was wrongly decided by this court on direct appeal. Thus, the issue is waived. See Ind. Appellate Rule 46(A)(8)(a) (providing that each contention made in the argument section of appellant's brief “must contain the contentions of the appellant on the issues presented, supported by cogent reasoning” and “citations to the authorities ․ relied on”). For these reasons, Rice has failed to show that his appellate counsel was ineffective.

[24] In sum, we conclude that the PCR Court correctly determined that Rice failed to show that his trial and appellate counsel were ineffective. Thus, the PCR court properly denied Rice's petition for post-conviction relief.

[25] Judgment affirmed.

FOOTNOTES

1.   Rice filed his initial petition for post-conviction relief on May 19, 2022, and two amended petitions thereafter.

2.   Ripstra passed away shortly after the post-conviction hearing.

Altice, Judge.

Brown, J. and DeBoer, J., concur.