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06/27/91 THOMAS T. CALDWELL v. UNITED STATES

June 27, 1991

THOMAS T. CALDWELL, JR., APPELLANT,
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; Hon. Reggie B. Walton, Trial Judge

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

The opinion of the court was delivered by: Rogers

As part of a plea agreement, appellant Thomas T. Caldwell pled guilty to two counts of assault with a dangerous weapon and criminal contempt. The contempt plea was based on a count in an indictment charging him under D.C. Code § 11-944(a) (Supp. 1990), for which he received a sentence of seven to twenty-one years imprisonment. On appeal he contends that his sentence for contempt was illegal since it exceeded the maximum sentence for contempt under D.C. Code § 23-1329 (c) (1989) for violation of a condition of pretrial release. He also assigns as error the trial Judge's reliance on unverified assertions made by the prosecutor at the time of sentencing. Finally, he contends that the Judge abused his discretion in imposing a sentence that "clearly was not intended to preserve the power and dignity of the court, or to punish him for disobedience to its orders." Although we conclude that appellant's first two contentions warrant no relief, we agree with his contention regarding his sentence for contempt and remand the case for resentencing for contempt consistent with the principle of proportionality.

I.

Appellant was indicted, following a complaint by his girlfriend relating to events on December 5, 1986, for rape while armed, D.C. Code §§ 22-2801 and -3202 (1989), kidnapping while armed, id. §§ 22-2101 and -3202, two counts of sodomy, id. § 22-3502, assault with a dangerous weapon (lit cigarette), id. § 22-502, and assault with a dangerous weapon (stick). Id. As a condition of his release, he was ordered, inter alia, to stay away from his girlfriend and refrain from criminal conduct. Nevertheless, on March 11, 1987, two weeks before his trial was scheduled to begin, appellant drove to the street where his girlfriend lived, and upon seeing her, drove his car at her, knocking a floor length mirror and a square mirror she was holding to the ground.

The grand jury returned a new indictment charging all of the former counts plus assault with intent to kill while armed (motor vehicle), D.C. Code §§ 22-501 and -3202 (1989), obstruction of Justice, id. § 22-722(a)(1), and contempt, id. § 11-944 (a), the new counts arising out of appellant's conduct on March 11, 1987. At the plea hearing, the trial Judge explained the implications of a guilty plea, including the rights appellant would waive and the possible terms of imprisonment he faced. *fn1 Appellant thereafter entered pleas of guilty to assault with a dangerous weapon (stick) on December 5, 1986, to a second count of assault with a dangerous weapon (motor vehicle) on March 11, 1987, and to criminal contempt, also on March 11, 1987; the government dismissed the other charges. At sentencing, the prosecutor referred to the presentence report, which recounted appellant's prior assaultive behavior toward other women. The trial Judge sentenced appellant to three to nine years imprisonment on each assault count, and seven to twenty-one years for contempt, to run concurrently with the sentence on the March 11, 1987, assault count.

II.

As a threshold issue, the government contends that the appeal, other than appellant's claim that the trial Judge abused his discretion in imposing an excessive sentence for contempt, see Part IV, infra, should be dismissed because appellant waived his right to appeal his conviction by pleading guilty to contempt. Bettis v. United States, 325 A.2d 190, 194 (D.C. 1974) ("as a practical matter virtually every possible avenue of appeal is waived by a guilty plea"). The government argues that, instead of a direct appeal of his conviction, appellant should have filed a collateral attack by motion to withdraw his guilty plea under Super. Ct. Crim. R. 32 (e) or to vacate his sentence under D.C. Code § 23-110 (citing Lorimer v. United States, 425 A.2d 1306 (D.C. 1981)(per curiam)); see also Morrison v. United States, 579 A.2d 686, 689 (D.C. 1990); McClurkin v. United States, 472 A.2d 1348, 1352 (D.C.), cert. denied, 469 U.S. 838, 105 S.Ct. 136, 83 L.Ed.2d 76 (1984).

Lorimer, however, involved a challenge to the voluntariness of a guilty plea, and the court there stated that "the only issues that can be raised on this appeal are the exercise of jurisdiction by the trial court and the legality of the sentence imposed." 425 A.2d at 1308 (citations omitted). Cf. Robinson v. United States, 454 A.2d 810 (D.C. 1982) (illegal sentence can be corrected at any time); Super. Ct. Crim. R. 35. An illegal sentence

is one "at variance with the controlling sentencing statute," Prince v. United States, 432 A.2d 720, 721 (D.C. 1981) (per curiam), or "illegal" in the sense that the court goes beyond its authority by acting without jurisdiction or imposing a sentence in excess of the statutory maximum provided . . . ." Robinson v. United States, [454 A.2d 810, 813 (D.C. 1982)].

Allen v. United States, 495 A.2d 1145, 1149 (D.C. 1985) (en banc). Appellant here is not challenging his conviction or the voluntariness of his plea, but rather the legality of his sentence for contempt because it exceeds the maximum penalty set forth in D.C. Code § 23-1329 (c) (1989). Regardless of its merits, the appeal of the legality of his sentence is, therefore, properly before us.

III.

The grand jury indictment charged appellant with contempt of court, not under D.C. Code § 23-1329, but under D.C. Code § 11-944 (a), which provides:

In addition to the powers conferred by section 402 of title 18, United States Code [defining acts constituting contempt], the Superior Court, or a Judge thereof, may punish for disobedience of an order or for contempt ...


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