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09/26/91 JAMES S. SMITH v. UNITED STATES

September 26, 1991

JAMES S. SMITH, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; Hon. Susan Holmes Winfield, Trial Judge

Rogers, Chief Judge, and Ferren and Farrell, Associate Judges.

The opinion of the court was delivered by: Ferren

In January 1990, the trial court suspended imposition of a sentence after appellant had pleaded guilty to attempted unlawful use of a vehicle, D.C. Code §§ 22-103, -3815 (1989). The court placed him on probation for one year under the Youth Rehabilitation Act (YRA), D.C. Code § 24-803 (a) (1989 & Supp. 1990). Nine months later, the trial court revoked appellant's probation and sentenced him as an adult to 180 days in prison, with all but 30 days suspended, placing him on work release to be followed by one year of supervised probation conditioned on appellant's attending school or maintaining full-time employment. Appellant argues that imposition of an adult sentence upon revocation of his YRA probation was illegal under D.C. Code §§ 24-104, -801 to -807 (1989). We conclude that, by its plain wording, § 24-104 does not preclude the trial court from revoking YRA probation (ordered in lieu of imposition of sentence) and then imposing an adult sentence. We also conclude, however, that if the trial court wishes to incarcerate a youth offender as an adult after revocation of YRA probation, § 24-803 (d) requires the trial court to make an explicit finding on the record that the youth offender no longer will "derive benefit" from YRA supervision (although the court need not provide supporting reasons). Because the trial court, in revoking appellant's probation, did not make such an explicit finding, we must remand the case for further proceedings.

I.

On December 4, 1989, appellant -- then eighteen years old -- pleaded guilty to the misdemeanor offense of attempted unauthorized use of a vehicle. After a presentence investigation, the trial court suspended imposition of sentence, placed appellant on supervised probation for one year under the YRA, D.C. Code § 24-803 (a), *fn1 and expressly ordered that while on probation appellant must undergo drug testing as directed by the probation office, maintain employment, and participate in vocational and educational training. The trial court gave appellant the following explicit warning:

It is important you comply with all of the conditions of probation. If your probation officer decides to tell you to go and report for drug testing every single week, even though you are negative and it is inconvenient, just go. Most people do not make it on probation, even people like yourself who really ought to. Something happens along the way and they stop complying, and they come back to me a single violation, and they end up with probation revoked, and I almost never give probation twice.

So, if you have a revocation, it means you are going to see jail time. That is why if you can just do everything the probation officer asks you to for a year, you can complete your probation successfully and get this behind you and finish.

By August 1990, the Social Services Division of the Superior Court had filed a probation violation report with the court, citing appellant's failure to keep scheduled appointments with his probation officer in February, April, and June 1990; his failure to inform the probation office of his new address after moving; and his failure to participate in the Urine Surveillance Program for drug treatment and detection. The trial court issued an order to show cause why appellant's probation should not be revoked.

At the September 1990 show cause hearing, appellant explained why he had missed his appointments: "I completely forgot about my probation, Your Honor." The probation officer nonetheless recommended that appellant, whom he described as "a very young man," remain on probation and that the court continue the show cause hearing for sixty days to "see if he continues to perform." The probation officer also corrected the probation violation report, stating that appellant in fact had complied with the Urine Surveillance Program by submitting negative urine samples on six different dates as required.

The trial Judge, however, revoked appellant's probation because "I don't hear any rational justification for him not only not appearing, but once in six months, but making himself unavailable. . . requiring Probation to track him down." After finding that work release would not be available at the YRA facility, the court sentenced appellant as a adult on the charge of attempted unauthorized use of a vehicle to 180 days of incarceration, with all but 30 days suspended, and placed appellant on work release, to be followed by supervised probation for one year conditioned on appellant's attending school or maintaining full-time employment.

II.

Appellant argues that the trial court's imposition of an adult sentence upon revocation of his YRA probation violated D.C. Code § 24-104, which provides in part:

At any time during the probationary period the court may . . . revoke the order of probation and cause the rearrest of the probationer and impose a sentence and require him to serve the sentence or pay the fine originally imposed, or both, as the case may be, or any lesser sentence.

In interpreting this section, appellant relies on Mulky v. United States, 451 A.2d 855 (D.C. 1982), in which we held that under § 24-104 "the trial court [on revoking probation] has discretion to impose any sentence that the court could have imposed upon conviction, provided that the new sentence is no more severe than the original sentence." Id. at 856; see Jones v. United States, 560 A.2d 513, 516 (D.C. 1989). Appellant contends that because imposition of an adult sentence is inherently more severe than a YRA sentence, see Moore v. United ...


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