Logan v. United States

591 A.2d 850, 1991 D.C. App. LEXIS 119, 1991 WL 86003

• Court: District of Columbia Court of Appeals
• Decided: May 21, 1991
• Docket: 89-747, 89-1152
• Status: Published

Opinions

ROGERS, Chief Judge:

Appellants appeal from their convictions by a jury of distribution of cocaine and possession with intent to distribute cocaine, in violation of D.C.Code § 33-541(a)(l) (1988). Only appellant Burgess’ claim that the sentencing judge failed to comply with the requirements of D.C. Code § 23-111 (1989) requires discussion.¹

Burgess contends that the sentencing judge failed to follow the proper procedures for enhancing sentence, because the prosecutor filed an information which incorrectly listed the court in which one of the alleged prior convictions had been obtained. Hence, the question, an issue of first impression in this court, is whether such an error renders notice under the governing statute invalid.

I

D.C.Code § 23-111 (1989), provides, in pertinent part:

(a)(1) No person who stands convicted of an offense under the laws of the District of Columbia shall be sentenced to increased punishment by reason of one or more previous convictions, unless prior to trial ... the United States attorney ... files an information with the clerk of the court, and serves a copy of such information on the person or counsel for the person, stating in writing the previous convictions to be relied upon_ Clerical mistakes in the information may be amended at any time prior to the pronouncement of sentence.

The government filed an information which listed two past offenses allegedly committed by appellant Burgess. One conviction in 1986 was for possession with intent to distribute cocaine. A second conviction in 1982 was for possession of a controlled substance, which the information indicated was a conviction in the Superior Court of the District of Columbia.

Burgess filed a written response contesting both charges. He demonstrated to the satisfaction of the trial judge that the distribution charge had been vacated. At sentencing, the government produced a certified copy of the second conviction, which indicated that it had been obtained in the United States District Court for the District of Columbia. Burgess maintained, however, that the misstatement of the court of conviction denied him the notice required by § 23-111, arguing that the two convictions — in the Superior Court and in the United States District Court for the District of Columbia — were two separate offenses.

The trial judge, after affording the parties an opportunity to brief the issue, ruled that Burgess had received sufficient notice under § 23-111 by way of the date, case number and offense so that the drug possession conviction could be used as a basis for enhanced sentencing. The judge also conducted a voir dire of Burgess regarding the 1982 conviction and Burgess admitted the existence of the conviction, indicating that it had arisen from a guilty plea and that no legal challenges were pending to the conviction. Burgess further acknowledged that he understood that the existence of the conviction meant the judge could enhance his sentence.

II

On appeal Burgess’ principal contention centers on the fact that the court has held that “[sjtrict, not substantial compliance, is the rule” in evaluating compliance with § 23-111. (Robert) Smith v. United States, 356 A.2d 650, 652 (D.C.1976). He maintains that factual allegations in the information must be subject to proof by the government or admission by the defendant and that the trial judge failed to inquire whether he affirmed or denied the possession conviction.

The court has repeatedly interpreted the statute to require strict assurance of the defendant’s substantive rights. See, e.g., Boswell v. United States, 511 A.2d 29, 31 (D.C.1986); Fields v. United States, 396 A.2d 990, 991 n. 1 (D.C.1979). Thus, the judge must afford the defendant the opportunity to affirm or deny any alleged past convictions and inform the defendant that the failure to challenge a past conviction prior to sentencing will result in the waiver of any right to such a challenge in the future. D.C.Code § 23-111(b).

In Arnold v. United States, 443 A.2d 1318 (D.C.1982), the court explained that:

The purpose of the statute is twofold: (1) to give notice to the defendant so that he may reasonably assess whether to plead guilty or proceed to trial, and (2) to avoid the “unfairness” of increasing the potential punishment after the trial has begun.

Id. at 1326.² With this dual purpose in mind, the court has ordered resentencing when either of the statutory purposes has gone unfulfilled. See, e.g., Key v. United States, No. 90-108, 587 A.2d 1072 (D.C.1991) (late notice denied defendant opportunity to consider whether to plead guilty); Fields, supra (defendant not informed of the risk of waiver); (Robert) Smith, supra (same); (.Ernestine) Smith v. United States, 304 A.2d 28 (D.C.), cert. denied, 414 U.S. 1114, 94 S.Ct. 846, 38 L.Ed.2d 741 (1973) (defendant not provided the opportunity to affirm or deny the convictions in the information); see also United States v. Bolden, 169 U.S.App.D.C. 60, 514 F.2d 1301, 1313 (1975) (same).

By contrast, where the court has concluded that the purposes of the statute were fulfilled, notwithstanding technical violations, resentencing has not been required. Thus, in Arnold, supra, 443 A.2d 1318, the government filed its enhancement papers after the jury had been empaneled, but before the jury had been sworn. Although the court interpreted the statute to require that filing occur before jury selection begins, it concluded that the late filing was harmless because the defendant had, in fact, received clear notice of the government’s intention to seek an enhanced sentence. 443 A.2d at 1328 (citing Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). The court made clear that the touchstone of its analysis was fulfillment of “the overriding statutory purpose of providing a defendant ‘notice’ of the possibility of enhanced punishment.” Id. Since the government had filed the informations seeking enhanced penalties prior to the swearing of the jury, the court concluded that the defendant had been “fully aware of the government’s intention to file informations seeking enhanced punishment, thus allowing him an adequate opportunity to determine whether to plead guilty or proceed to trial.” Id. at 1328; see also Irby v. United States, 585 A.2d 759, 766 n. 11 (D.C.1991) (enhancement information based on murder and housebreaking, where only housebreaking was a proper basis for enhancement, was a harmless technical error, since defendant had clear notice of government’s intent to seek enhancement, and the amount of possible enhancement was the same in either case); D.C.Code § 23-111(a)(1) (clerical mistakes may be corrected “at any time” prior to sentencing); D.C.Code § 23-111(c)(1) (failure to include in the information complete criminal record of the person or any facts in addition to the convictions to be relied upon dees not invalidate the notice required under subsection (a)(1)). Numerous state courts have interpreted similar enhancement statutes under a harmless error standard, so that where a defendant receives clear notice of a previous conviction, a misstatement as to a single piece of information, such as the date of a conviction or the county in which a conviction was imposed, is deemed harmless.³

The information alleging Burgess’ prior convictions was filed before the jury was empaneled. Hence, he had timely notice of the government’s intention to seek enhanced sentencing. The adequacy of notice is clear from his successful challenge of the 1986 conviction and his challenge to the 1982 conviction based on the error regarding the court of conviction. The information correctly stated the date, geographic jurisdiction, ease number and nature of the offense. Before sentencing, the government produced a certified copy of the 1982 conviction in federal court. Burgess neither denied the existence of the conviction nor that he had been convicted of the offense charged. He makes no claim that the misstatement affected his ability to decide how he would proceed in his defense. His claims that the information referred to one offense and the federal court conviction to another offense and that the trial judge failed to make an adequate inquiry of him are meritless. See Boswell, supra, 511 A.2d at 31-32.

Accordingly, we hold that the misstatement of the court of conviction was harmless error and the judgment of conviction is affirmed.

1 . Appellants’ contention that there was insufficient evidence to convict them is meritless. The eyewitness testimony of the police officer who made the undercover drug purchase demonstrated that Logan and Burgess were working together to distribute drugs. See McClain v. United States, 460 A.2d 562, 567 (D.C.1983); United States v. Hubbard, 429 A.2d 1334, 1337 (D.C.), cert. denied, 454 U.S. 857, 102 S.Ct. 308, 70 L.Ed.2d 153 (1981); see also Chambers v. United States, 564 A.2d 26, 30 (D.C.1989).

Appellant Logan’s contention that the trial judge prejudiced the jury by making remarks that were demeaning to defense counsel is also without merit. Only three of the seven contested remarks were actually uttered in front of the jury. See Khaalis v. United States, 408 A.2d 313, 351 (D.C.1979), cert. denied, 444 U.S. 1092, 100 S.Ct. 1059, 62 L.Ed.2d 781 (1980). The three remarks in the jury’s presence are interspersed throughout a transcript of over four hundred pages. No harsh language was used, and the comments appear to reflect no more than the trial judge’s desire to avoid unnecessary delay. None of the comments indicated that the judge had a negative view of the merits of the case. See Oesby v. United States, 398 A.2d 1, 10 (D.C.1977); see also Rosenberg v. United States, 66 A.2d 489, 491 (D.C.1949).

2 . The court noted, further, that the first purpose "seems to have been of ultimate concern to the Congress,” and that "taking account of the strong legislative intent to provide a 'new safeguard’ to criminal defendants who may be subjected to increased, recidivist penalties following conviction ... informations seeking enhanced penalties must be filed before the process of selecting a jury has started in order to comply with the requirement of filing such in-formations 'prior to trial' as called for by D.C. Code § 23-111(a)(1).” Arnold, supra, 443 A.2d at 1326 (emphasis in original).

3 . See, e.g., Haymaker v. State, 528 N.E.2d 83, 86 (Ind.1988); Harmon v. State, 518 N.E.2d 797, 798-99 (Ind.1988); Starks v. State, 517 N.E.2d 46, 53 (Ind.1987); State v. Brown, 729 S.W.2d 224, 225-26 (Mo.Ct.App.1987); State v. Wakeman, 231 Neb. 66, 73-75, 434 N.W.2d 549, 555-56 (Neb.1989); State v. Oliver, 230 Neb. 864, 866-70, 434 N.W.2d 293, 296-97 (Neb.1989); Babbs v. State, 739 S.W.2d 646, 649-50 (Tex.App.1987); Brown v. State, 692 S.W.2d 146, 149-50 (Tex.App.1985), aff’d, 757 S.W.2d 739 (Tex.Crim.App.1988) (en banc); Lopez v. State, 654 S.W.2d 521, 523-24 (Tex.App.1983); Cole v. State, 611 S.W.2d 79, 80-82 (Tex.Crim.App.1981); State v. Masters, 373 S.E.2d 173, 176-77 (W.Va.1988).