Pernell v. United States

771 A.2d 992, 2001 D.C. App. LEXIS 90, 2001 WL 359956

• Court: District of Columbia Court of Appeals
• Decided: April 12, 2001
• Docket: No. 99-CF-153
• Status: Published

Opinions

REID, Associate Judge:

After a bench trial, appellant Linda Per-nell ¹ was convicted of possession of a controlled substance (cocaine), in violation of D.C.Code § 33-541(a)(l) (1998). On appeal, Ms. Pernell contends, in part, that the trial court erred by failing to impose probation without judgment under D.C.Code § 33-541(e).² We affirm.

FACTUAL SUMMARY

At trial, the government’s evidence showed that, on May 28, 1998, at approximately 5:20 p.m., Officer Jeffrey Colleli, a fourteen-year veteran of the Metropolitan Police Department (“MPD”), was conducting a drug surveillance operation in an elevated observation post near the 5400 block of 7th Street, N.W., in the District. Officer Colleli testified that this area was selected for the operation because it was “very well known for its open-air drug markets, mainly cocaine.”

As Officer Colleli was observing this area, he noticed “Ms. Pernell approach[ ] a subject later known as Mr. King ..., [and][a]fter a brief conversation^ observed] Mr. King [go] into ... an open area, like a vacant lot.” Although his observation post was actually “30 [to] 40 feet” away from her, Ms. Pernell appeared to be “within about 5 feet” of Officer Colle-li, due to his use of “binoculars.” About “a minute” after his departure, Mr. King returned, and “dropped ... two small objects [ ] to the ground.” Officer Colleli then saw “Ms. Pernell hand[ ] [Mr. King] a[n unidentified] sum of money ..., ben[d] down [,] pick[ ] up the objeets[,] and ... walk[ ] south on 7th Street.” Based upon this observation, Officer Colleli proceeded to broadcast a lookout to an arrest team located in the immediate area.

Officer Garvin, an eight-year veteran of the MPD who has participated in “500 to [1000] various [drug] cases,” and Officer Cutler, responded to the broadcast and “stopped [Ms. Pernell] in front of 5304 7th Street, [N.W.]” Officer Garvin testified that he observed Pernell “drop[ ] two Zi-plocs of white rock substance to the ground from her right hand.” After Officer Cutler retrieved the discarded Ziplocs, and immediately discovered that they tested positive for cocaine, Ms. Pernell was placed under arrest for possession of cocaine.

Ms. Pernell testified as the sole defense witness. Although she admitted that she spoke with Mr. King on the day in question, she denied engaging in a drug transaction with him, and stated that she at no time was in possession of cocaine.

Following the completion of a bench trial, Ms. Pernell was found guilty of possession of cocaine. As the trial judge stated:

[T]he court has heard the evidence in the case and finds the defendant guilty on the count of possession of cocaine beyond a reasonable doubt. The court, in viewing and weighing the testimony of the officers as opposed to Ms. Pernell, resists the defendant’s testimony.... [T]he court believed the officers beyond a reasonable doubt.

Prior to sentencing, defense counsel requested that Ms. Pernell be sentenced under § 33-541(e). In denying his request, and sentencing Ms. Pernell to 180 days in prison, with all but ten days of that sentence suspended, in lieu of six months of supervised probation, the trial judge stated:

[H]aving considered the request of Ms. Pernell to be sentenced under [§ 33-541(e) ] probation, the use of that is not appropriate in this circumstance.

It’s the court’s view [that § 33-541(e) ] is designed for the person who makes a mistake and has a drug problem, and the defendant stands before the court and says to the court, I’ve made a mistake, I really want a second chance, Judge. And [§ 33 — 541(e) ] is designed for the purpose to help so that that person can get their lives back together.

Ms. Pernell simply indicated she was wrongly convicted and that’s her right to do. She does not have to personally accept the court’s verdict. The court does not believe that [§ 33 — 541(e) ] is the appropriate avenue here.

The day following sentencing, Ms. Pernell filed a motion for reduction of sentence. After making several unsworn allegations, such as she had no babysitter for her four-year-old daughter and did “not now know the whereabouts of her daughter,” Ms. Pernell stated: “The court declined to sentence [her] under Section 33-514(e) because she ... disagreed with the version of the officers.” The trial court denied the motion, concluding that Ms. Pernell “ha[d] not set forth any factors that the court did not consider at the time of sentencing.” Ms. Pernell filed a timely appeal.

ANALYSIS

Ms. Pernell contends that the trial court committed plain error when it “forged a uniform rule for applying its discretion under [§ 33-541(e) ].” She maintains that the trial court abused its discretion in sentencing her because it did so based upon an impermissible “uniform policy” which effectively denies § 33-541(e) sentencing benefits to “those who do not recognize their drug problem, or their mistake, [and those] who have not asked the court for a second chance.”

“[T]he decision to sentence under section 33-541(e) ... is entrusted to the trial court’s discretion.” Houston v. United States, 592 A.2d 1066, 1067 (D.C.1991). However, “[w]e will ... reverse a trial court’s ruling on a matter within its discretion when the trial court, while recognizing its right to exercise discretion, ‘declines to do so, preferring instead to adhere to a uniform policy....’ ” Id. (quoting Johnson v. United States, 398 A.2d 354, 363 (D.C. 1979)) (citations omitted). “ ‘[T]he discretion called for ... is the exercise of discretion in individual cases, not the discretion of the trial judge to adopt a uniform policy ... in all cases irrespective of circumstances ....’” Id. (quoting United States v. Queen, 140 U.S.App.D.C. 262, 263, 435 F.2d 66, 67 (1970) (footnote omitted) (other citation omitted)).

During sentencing, the trial judge asked defense counsel whether he wished to say anything in support of his request for sentencing under § 33-541(e). He responded:

Well, she clearly has never been convicted. She’s never been guilty until now. I think this [provision] is one that is enacted by the legislature to sentence people like Ms. Pernell. We call for basically a period of probation and we also ask that at the time she completes the [probation] ..., this conviction be expunged.

In response, the government asked for the full 180 day sentence. Section 33-541(d) authorizes a sentence of not more than 180 days, a fine of $1,000, or both. Ms. Pernell interjected that: “I didn’t he about what I was testifying to.”

The trial court then considered the request for sentencing under § 33-541(e). First, the trial court explained her understanding of § 33-541(e) and what it was designed to accomplish. Second, the trial court concluded that Ms. Pernell failed to show why she should be sentenced under § 33-541(e). Obviously the court was bothered by the fact that Ms. Pernell “simply indicated that she was wrongly convicted.” In that regard, the judge clearly concluded that Ms. Pernell was guilty, lied under oath, and showed no remorse for her actions. Indeed, Ms. Pernell’s own words at sentencing revealed her understanding of the trial judge’s conclusion that she had not been candid or truthful during her testimony: “I didn’t he about what I was testifying to.” Nonetheless, the trial judge also was unpersuadéd by the government’s argument that the maximum 180 day sentence should be served by Ms. Pernell. Consequently, the judge exercised her discretion not only to deny § 33-541(e) relief, but also to suspend execution of the maximum 180 day sentence under § 33-541(d) in favor of ten days of incarceration, fohowed by six months of supervised probation. Similarly, the trial judge exercised her discretion in denying the motion for reduction of sentence. Nothing in Ms. Pemell’s motion reflected remorse, or any basis for the trial court reversing its determination that Ms. Pernell had lied under oath.

Contrary to Ms. Pernell’s assertions, the trial court’s statement prior to sentencing does not amount to the type of “uniform policy” that this court deemed to be an abuse of discretion in Houston, supra. In Houston, supra, the trial judge stated: “I don’t give 541(e) when people are involved in selling and buying hard drugs, heroin and cocaine.” Id. at 1067. This statement reflected “the discretion of the trial court to adopt a uniform policy” rather than “the exercise of discretion in [an] individual case[ ].” Id. Unlike the judge in Houston, the trial judge in Ms. Pernell’s case exercised her discretion in Ms. Pernell’s individual case. Ms. Pernell had no statutory entitlement to be sentenced under § 33-541(e). The plain language of the statute specifies that the trial judge “may” defer sentence and place the individual on conditional probation. As the legislative history of this section reveals: “The court’s decision whether or not to apply the provisions of this section to an eligible offender is discretionary....” Council of the District of Columbia, Committee on the Judiciary, Report on Bill 4-123, “the District of Columbia Uniform Controlled Substances Act of 1981,” April 8,1981, at 30.

Ms. Pernell’s case does not fall within the very limited exceptions to the principle established by our precedents, that “it is not our role to review sentences which are within statutory limits.” Walden, supra, 366 A.2d at 1077; see also In re L.J., 546 A.2d 429, 434 (D.C.1988). For example, “we are authorized to reexamine the sentencing process where it is alleged that the judge totally failed to exercise [her] discretion in imposing sentence.” United States v. Stoddard, 180 U.S.App. D.C. 209, 213, 553 F.2d 1385, 1389 (1977) (emphasis added); L.J., supra, 546 A.2d at 435 (quoting Stoddard, supra). As we have shown, there was no total failure to exercise discretion in this case. Indeed, the pivotal reason why the trial court decided not to sentence Ms. Pernell under § 33-541(e) was her lack of candor. In that regard, we have held, as has the Supreme Court of the United States, that in imposing a sentence within statutory limits, the judge may properly take into account the fact that a defendant gave false testimony during her trial. Banks v. United States, 516 A.2d 524, 530 (D.C. 1986) (citing United States v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978)). That is what the trial judge did in sentencing Ms. Pernell. Furthermore, the trial judge undoubtedly concluded that Ms. Pernell’s statement in her motion for reduction of sentence, that she was denied § 541(e) relief because she “disagreed with the version of the officers,” merely con-finned her lack of candor. In short, we see no abuse of discretion.

Accordingly, for the foregoing reasons, we affirm the judgment of the trial court.³

So ordered.

1 . Ms. Pernell’s name also appears in the record as "Purnell.”

2 . D.C.Code § 33-541(e) states, in pertinent part:

If any person who has not previously been convicted of violating any provision of this chapter, or any other law of the United States or any state relating to narcotic or abusive drugs or depressant or stimulant substances is found guilty of a violation of subsection (d) of this section and has not previously been discharged and had the proceedings dismissed pursuant to this subsection, the court may, without entering a judgment of guilty and with the consent of such person, defer further proceedings and place him or her on probation upon such reasonable conditions as it may require and for such period, not to exceed one year, as the court may prescribe. Upon violation of a condition of probation, the court may enter an adjudication of guilt and proceed as otherwise provided.

3 . Ms. Pernell's other arguments are unpersuasive. She asserts that since the government "failed to prove that [she] possessed a measurable amount of cocaine,” her conviction must be reversed due to an insufficiency of evidence in this regard. "This court will reverse a conviction on the basis of insufficient evidence 'only if, after viewing the evidence in the light most favorable to the government, it can be said that the decision is clearly erroneous.’ ” Foster v. United States, 699 A.2d 1113, 1115 (D.C.1997) (quoting Cooper v. United States, 680 A.2d 1370, 1371 (D.C. 1996)). " 'Only if there is no evidence upon which a reasonable mind might fairly conclude guilt beyond a reasonable doubt, can we reverse for insufficiency of the evidence.' ” Id. (internal quotation omitted) (quoting Cooper, supra, 680 A.2d at 1371) (citation omitted).

Contrary to Ms. Pernell’s claims, the record reveals that the government proved that she possessed a measurable amount of cocaine. The DEA 7 form, that was admitted into evidence, without objection from defense counsel, specifically stated that the amount of cocaine recovered and tested was "0.23g.'' Since "[t]he government ordinarily establishes the presence of a measurable amount of a controlled substance by means of a chemist's report stating the weight of the drug in question,” Price v. United States, 746 A.2d 896, 899 (D.C.2000) (citation omitted), and the DEA 7 is commonly regarded as such a report, see id. at 900, the government presented sufficient evidence that Ms. Pemell possessed a measurable amount of cocaine to sustain her conviction. In her reply brief, Ms. Pernell contends, for the first time, that "each of the separate bags did not contain measurable quantities of cocaine." However, since “[i]t is the longstanding policy of this court not to consider arguments raised for the first time in a reply brief,” Stockard v. Moss, 706 A.2d 561, 566 (D.C.1997), we need not address this particular claim.

Second, Ms. Pemell asserts that (1) the trial judge erred by telling the prosecutor that: "the standard is a measurable amount ...,” thus "preparfing] the government at trial;” and that (2) the prosecutor made an improper comment by affirming that he was ready for trial. Since Ms. Pemell raises these assertions for the first time on appeal, we review them for plain error. See Browner v. United States, 745 A.2d 354, 357 (D.C.2000); Mathis v. United States, 513 A.2d 1344, 1348 (D.C. 1986). " ‘Under the plain error standard, the error must be (1) obvious or readily apparent, and clear under current law; and (2) so clearly prejudicial to substantial rights as to jeopardize the very fairness and integrity of the trial.’ " Id. (quoting Coates v. United States, 705 A.2d 1100, 1104 (D.C. 1998)) (other quotations and internal quotation marks omitted). This court will reverse under the plain error standard “ ‘only in exceptional circumstances where a miscarriage of justice would otherwise result.' ” Id. (quoting Peterson v. United States, 657 A.2d 756, 762 (D.C. 1995)) (other quotations and internal quotation marks omitted).

Even assuming, without deciding, that the trial court and the prosecutor committed the errors alleged by Ms. Pemell, she is nevertheless not entitled to a reversal because she has failed to show that she suffered “substantial prejudice” as a result of such alleged errors. See Bowman v. United States, 652 A.2d 64, 71-72 (D.C. 1994). In fact, nowhere in her briefs before this court does Ms. Pemell articulate the precise prejudice that she suffered due to the challenged comments. See Coates, supra, 705 A.2d at 1104.

Furthermore, "given the strength of the government’s case and the weakness of the defense ..., any possible harm flowing from th[e challenged comments] was ‘too trivial to worry about.’ ” Washington v. United States, 760 A.2d 187, 196 (D.C.2000) (quoting Scott v. United States, 619 A.2d 917, 929 (D.C. 1993)). During a drag surveillance operation in an area known for drag distribution, Officer Collelli observed what he believed to be a drag transaction between Ms. Pemell and Mr. King. After Ms. Pernell was approached by Officers Garvin and Cutler following the broadcast lookout, Officer Garvin witnessed Ms. Pemell drop two ziplock bags to the ground. Upon conducting an on-the-scene field test of the contents of the bags, Officer Garvin learned that the bags contained cocaine. Ms. Pemell’s sole defense at trial was that she did not purchase or possess cocaine on the day in question.

Thus, "neither of these comments requires reversal because [Ms. Pemell] has not shown ... ‘substantial prejudice,’ " Bowman, supra, 652 A.2d at 71-72, and "[t]he evidence of [her] guilt was strong_” Morrison v. United States, 547 A.2d 996, 1000 (D.C. 1988).