Appeals from the Superior Court of the District of Columbia; Hon. Warren R. King, Trial Judge
Opinion for the court by Chief Judge Rogers. Opinion Dissenting in part and Concurring in part by Senior Judge Mack. Steadman, Associate Judge.
The opinion of the court was delivered by: Rogers
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)(1) (1988). Only appellant Burgess' claim that the sentencing Judge failed to comply with the requirements of D.C. Code § 23-111 (1989) requires Discussion. *fn1
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.
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.
On appeal Burgess' principal contention centers on the fact that the court has held that "strict, 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 ...