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08/27/90 ANTONIO BROWN v. UNITED STATES

August 27, 1990

ANTONIO BROWN, APPELLANT,
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; Hon. Evelyn E.C. Queen, Trial Judge

Rogers, Chief Judge, and Steadman and Schwelb, Associate Judges.

The opinion of the court was delivered by: Rogers

Appellant Antonio Brown appeals from his conviction and sentence under the District of Columbia Youth Rehabilitation Act, D.C. Code § 24-803 (b) (1989 Repl.) (YRA), which required as a condition of probation that he pay fifty dollars per week in child support. Ne contends that the trial Judge exceeded her authority under the YRA in imposing the condition of child support, and, alternatively, abused her discretion since the condition was not reasonably related to his rehabilitation and procedurally flawed. We hold that the trial Judge did not exceed her authority in setting child support as a condition of probation under the YRA but did abuse her discretion in determining the amount.

I

The Council of the District of Columbia, in response to the repeal by Congress of the Federal Youth Corrections Act, enacted the District of Columbia Youth Rehabilitation Act of 1985 (YRA). D.C. Code §§ 24-801-807 (1989 Repl.). The purpose of the YRA is to provide "rehabilitation opportunities for deserving young adult offenders," whom the YRA defines as persons under twenty-two years of age not convicted of murder. D.C. Code § 24-801 (6); REPORT OF THE COUNCIL OF THE DISTRICT OF COLUMBIA, COMMITTEE ON THE JUDICIARY, ON BILL 6-47, "THE YOUTH REHABILITATION ACT OF 1985," (REPORT) at 2 (June 19, 1985). The primary objectives are "1) to give the court flexibility in sentencing a youth offender according to his individual needs; 2) to separate youth offenders from more mature, experienced offenders; and 3) to afford the opportunity for a deserving youth offender to start anew through expungement of his criminal record." Id.

Although sentencing flexibility in order to address the particular needs of a youth offender was a specific objective of the YRA, this goal has always been a consideration in probation sentencing schemes. See Smith v. United States, 474 A.2d 1271, 1274 (D.C. 1983); Moore v. United States, 387 A.2d 714, 716 (D.C. 1978). Likewise the terms and conditions of probation, which are committed to the discretion of the sentencing Judge, have always been limited by the requirement that the conditions be reasonably related to the rehabilitation of the convicted person and the protection of the public. Smith, supra, 474 A.2d at 1274; Moore, supra, 387 A.2d at 716. Conditions of probation also must not be immoral, illegal, or impossible to perform. Huffman v. United States, 259 A.2d 342, 346 (D.C. 1969).

Appellant entered a plea to attempted possession of cocaine, *fn1 D.C. Code § 33-541 (a) (1) (1988 Repl.), and at sentencing requested that he be placed on probation under the YRA as recommended in the presentence report. His attorney represented that appellant was "a young man who . . . is trying to do something for himself, trying to get himself ahead," and that his involvement in this case was "out of character for Mr. Brown," who realized the seriousness of his action and that he cannot get "involved in anything like this again." The Judge imposed a sentence of probation for two years subject to the conditions of "job counseling, securing and maintaining regular employment, drug treatment and counseling with periodic urine surveillance." Upon learning that appellant was not paying any child support, the Judge added the condition that he pay fifty dollars per week in child support, to begin as soon as he was employed. Defense counsel objected on the ground that the Judge lacked jurisdiction since child support was a family matter, but the Judge dismissed the objection:

Part of youth rehabilitation is to rehabilitate and make him into a useful and productive citizen, accepting his responsibility in society. One of his responsibilities to society as he lets his sperm out and creates little people is to support those little people[.] herefore, as part of his nurturing and understanding of his role as an adult male in this society with minor children, [he is] to support them. I am going forward to help him understand what an adult male does, what his responsibilities are, and how he functions in society.

Appellant thereafter filed a motion to reduce sentence to vacate the condition of probation that he pay child support. He maintained that the condition violated due process and was unlawful. The trial Judge denied the motion, noting that appellant admitted paternity to his probation officer and the condition was "reasonably related to rehabilitation."

II

The YRA provides that "f the court is of the opinion that the youth offender does not need commitment, it may suspend the imposition or execution of sentence and place the youth offender on probation." D.C. Code § 24-803 (a). The statute is silent on whether or not child support can be made a condition of probation. However, like the Federal Youth Corrections Act (FYCA), on which the YRA is largely modeled, *fn2 the YRA provides that its sentencing alternatives are in addition to those otherwise available under law. Id. § 24-803 (f). See Durst v. United States, 434 U.S. 542, 98 S. Ct. 849, 55 L. Ed. 2d 14 (1978) (upholding imposition of fine and restitution as conditions of probation under FYCA, which was silent on whether these conditions of probation could be imposed under the Act, since Act incorporated other provisions of law). Although the District of Columbia probation statute, D.C. Code § 16-710 (1989 Rep.), does not include support of one's dependents as a condition of probation, as did the Federal Probation Act, *fn3 nothing in the legislative history of the YRA suggests that the D.C. Council intended to restrict conditions that were previously available for the Judge to impose under the FYCA. Moreover, the "Judgment and Commitment/Probation Order" requires that a probationer "bey all laws, ordinances and regulations," and parents are legally obligated to support their children. D.C. Code § 16-916 (1989 Repl.).

Conditioning probation on the payment of child support is somewhat analogous to a condition of restitution -- paying what is owed. Both conditions focus on rehabilitation, with the primary consideration being the benefit accruing to society as a whole, and only secondarily on the benefit to a third party. Id. See Kelly v. Robinson, 479 U.S. 36, 52, 107 S. Ct. 353, 93 L. Ed. 2d 216 (1986); Basile v. United States, 38 A.2d 620 (D.C. 1944); D.C. Code § 16-711 (1989 Repl.) (restitution as a condition of probation). Unlike the situation confronting the court in Davis v. United States, 397 A.2d 951, 954-55 (D.C. 1979), we find no legislative history, or other indication, that a Judge may not impose as a condition of probation under the YRA a requirement that an offender pay child support. See id. at 954-55 (historical review of probation statute indicating absence of authority to impose a split sentence, citing extensive legislative history). The court has upheld probation conditions relating to social obligations for a juvenile, In re L.M., 432 A.2d 692, 694 (D.C. 1981), and the broad discretion vested in the Judge in determining a Disposition designed to rehabilitate a juvenile delinquent, D.C. Code § 24-803 (1989 Repl.), is comparable to the broad goals of the YRA. REPORT, (supra) , at 2. In adult criminal cases the sentencing Judge is vested with broad discretion imposing conditions of probation, the statute referring only to probation "upon such terms as [the court] deems best." D.C. Code § 16-710. *fn4 See Simmons v. United States, 461 A.2d 463, 464-65 (D.C. 1983).

A number of state courts have held that child support payments are a proper condition of probation for an adult criminal defendant. People v. Wager, 129 Mich. App. 819, , 342 N.W.2d 619, 621 (1983) (negligent homicide); People v. Ford, 95 Mich. App. 608, 291 N.W.2d 140 (1980) (unarmed robbery conviction); State v. Shaver, 233 Mont. 438, 760 P.2d 1230 (1988) (sexual assault); Jackson v. State, 497 P.2d 475 (Okla.Cr. 1972) (omitting to provide for a minor child); State v. Pettis, 333 N.W.2d 717 (S.D. 1983) (possession of marijuana) (and cases cited from six other jurisdictions). See Ward v. State, 511 So.2d 1109 (Fla. Dist. Ct. App. 1987) (statute requiring probationers to support legal dependents); Dorsey v. State, 145 Ga. App. 750, 245 S.E.2d 31 (1978) (same); Commonwealth v. Papariella, 294 Pa. Super. 215, 439 A.2d 827 (Pa. Super. 1987) (same) (adultery and bastardy convictions). Inclusion of child support as a condition of probation is more common in cases where a parent has abandoned or abused children, *fn5 but courts also have deemed it to be appropriate where the criminal conviction is unrelated to the condition of support. See Ward, supra, 511 So.2d at 1110 (aggravated battery with a deadly weapon); Pettis, supra, 333 N.W.2d at 718-19 (distributing marijuana); Ford, supra, 95 Mich.App at , 291 N.W. at 142 (unarmed robbery). But see In re Bushman, 1 Cal. 3d 767, 777, 463 P.2d 727, , 83 Cal. Rptr. 375, 381 (1970) (limiting adult probation conditions to those related to conviction); *fn6 State v. Jackson, 226 N.C. 66, , 36 S.E.2d 706, 707 (1946) (setting aside condition of payment of alimony in accord with the long-standing state practice requiring adult defendant's consent to suspension of sentence). We think neither the absence of a civil court order to pay child support nor even the presence of a private agreement between parents, at least if inadequate, renders child support an improper condition of probation. Cf. Shaver, supra, 233 Mont. at , 760 P.2d at 1237.

This court has recently observed that "he provision of adequate child support surely ranks high among the priorities of a civilized nation." Fitzgerald v. Fitzgerald, 566 A.2d 719, 720 (D.C. 1989). Indeed, the paternal obligation is a matter of national policy. See Child Support Enforcement Act, 42 U.S.C. §§ 651-667 (1982 & Supp. III 1985). Defense counsel described appellant as a young man who was "trying to get himself ahead." The trial Judge explained that in order to provide appellant with a rehabilitative structure and help him to understand "what his responsibilities are" and how to function in society, he should act consistently with his parental obligations to his two children, whose parentage he admitted. It is hardly unreasonable to do so by requiring employment, counseling and acknowledgement of his duty and responsibility to provide for the support of his children. See Shaver, supra, 233 Mont. at , 760 P.2d at 1237. Cf. In re L.M., supra, 432 A.2d 692 (juvenile probation, with directions to obey the law, go to School, remain in his ...


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