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

DISTRICT OF COLUMBIA COURT OF APPEALS


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 States, 468 A.2d 1331, 1334 (D.C. 1983), *fn2 the trial court violated § 24-104 when it sentenced him as an adult to 180 days of imprisonment.

Appellant's reliance on Mulky and Moore, however, is misplaced. *fn3 In this case, it is irrelevant whether an adult sentence is more severe than a YRA sentence. D.C. Code § 24-104 provides, in the sentence following the one on which appellant relies: "If imposition of sentence was suspended, the court may impose any sentence which might have been imposed." Id. Here, the court clearly indicated in its judgment and probation order, and appellant concedes, that it had suspended imposition of any sentence on appellant's conviction for attempted unauthorized use of a vehicle. Therefore, under the plain language of § 24-104, the court was permitted, on revoking appellant's probation, to impose "any sentence which might have been imposed." Appellant's sentence of 180 days of incarceration with all but 30 days suspended was well within the statutory penalty for attempted unauthorized use of a vehicle. See D.C. Code § 22-103 (1989); *fn4 Greenwood v. United States, 225 A.2d 878, 880 (D.C. 1967). The sentence was therefore lawful under § 24-104.

III.

Appellant also argues, in the alternative, that the YRA does not contain a provision enabling the trial court to rescind the youth offender status of a defendant placed on probation. Unless such a provision exists, he says, § 24-104 cannot be read to permit the trial court to impose an adult sentence that would nullify the court's original finding that a youth offender would benefit from YRA treatment. Such broad sentencing power, he contends, would undermine the purposes of the YRA. *fn5

Section 24-803 lists the court's sentencing alternatives under the YRA:

(a) (1) If 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. . . .

(b) If the court shall find that a convicted person is a youth offender, and the offense is punishable by imprisonment under applicable provisions of law other than this subsection, the court may sentence the youth offender for treatment and supervision pursuant to this chapter up to the maximum penalty of imprisonment otherwise provided by law. . . .

(c) Where the court finds that a person is a youth offender and determines that the youth offender will derive benefit from the provisions of this chapter, the court shall make a statements of the record of the reasons for its determination. The youth offender shall be entitled to present to the court facts that would affect the decision of the court to sentence the youth offender pursuant to the provisions of this chapter.

(d) If the court shall find that the youth offender will not derive benefit from treatment under subsection (b) of this section, then the court may sentence the youth offender under any other applicable penalty provision.

(f) Subsections (a) through (e) of this section provide sentencing alternatives in addition to the options already available to the court.

(Emphasis added). We conclude that subsection (d) authorizes the court to rescind the YRA status of any youth offender -- including those placed on probation pursuant to subsection (a) -- and to impose an adult sentence if (but only if) the court finds that "the youth offender will not derive benefit from treatment" in a YRA facility. This Conclusion follows from the statute's plain language. First, the trial court's power under subsection (a) to "suspend the imposition or execution of sentence and place the youth offender on probation" clearly contemplates the possibility that probation may be revoked. Second, in looking for what the trial court may do upon such revocation, we find that the statute provides for two possibilities: continued treatment under the YRA, § 24-803 (b), or a sentence "under any other applicable penalty provision" if the court "shall find that the youth offender will not derive benefit from treatment," § 24-803 (d). *fn6 In this case, the trial court obviously elected to proceed under subsection (d). The question, then, is whether the court complied with the statutory requirement that, in electing that subsection, the court "shall find that the youth offender will not derive benefit from treatment. . . ." D.C. Code § 24-803 (d) (1989) (emphasis added). *fn7

The fact that the court imposed an adult sentence was arguably an implicit finding of no benefit under the YRA. But must that finding be explicit? Under the now-repealed Federal Youth Corrections Act (FYCA), 18 U.S.C. § 5010 (d) (1982), *fn8 see (supra) note 2, we held, following the Supreme Court, that "an express finding of no benefit must be made on the record." (Curtis) Smith v. United States, 330 A.2d 519, 522 (D.C. 1974) (emphasis in original) (quoting Dorszynski v. United States, 418 U.S. 424, 425, 94 S. Ct. 3042 , 41 L. Ed. 2d 855 (1974)). *fn9 Similarly, the Court held that, under the FYCA, when a trial Judge imposes a consecutive adult sentence on an offender serving an FYCA sentence and converts the balance of the FYCA sentence to an adult sentence, the Judge must make "an explicit 'no benefit' finding with respect to the remainder of the FYCA sentence." Ralston v. Robinson, 454 U.S. 201, 219, 102 S. Ct. 233, 70 L.Ed.2d 345 (1981) (footnote omitted). The Supreme Court has reasoned that an explicit, not implicit, finding of no benefit "insures that the sentencing Judge exercised his [or her] discretion in choosing not to commit a youth offender to treatment under the Act." Dorszynski, 418 U.S. at 443. "To hold that a 'no benefit' finding is implicit each time a sentence under the Act is not chosen would render [18 U.S.C.] § 5010 (d) nugatory. . . ." Id. at 444. The language of D.C. Code § 24-803 (d) at issue here is virtually identical *fn10 to 18 U.S.C. § 5010 (d) at issue in Dorszynski, and none of the legislative history of the YRA (or of § 24-803 (d) in particular) indicates a desire to depart from the well-established interpretation Dorszynski put on that language. We therefore see no reason why we should not apply to YRA § 24-803 (d) our FYCA reasoning, see (Curtis) Smith, 330 A.2d at 522, derived from the Supreme Court's Dorszynski ruling and thus require the trial court to make an explicit "no benefit" finding, although the court need not supply supporting reasons. *fn11

In this case, the court did not make an explicit finding of record that, upon revocation of appellant's probation, he would "not derive benefit" from continued YRA treatment. Accordingly, we must remand the case for the trial court to address this issue.

IV.

Finally, appellant argues that the trial court abused its discretion in revoking appellant's probation when it failed adequately to balance "the competing interests of the community in safety with the rehabilitative goals of probation." Saunders v. United States, 508 A.2d 92, 95 n.6 (D.C. 1986) (quoting (Jacqueline) Smith v. United States, 474 A.2d 1271, 1274 (D.C. 1983)).

The decision to revoke probation is a matter committed to the sound discretion of the trial court and "typically involves a two step analysis: '(1) a retrospective factual question whether the probationer has violated a condition of probation; and (2) a discretionary determination by the sentencing authority whether violation of a condition warrants revocation of probation.'" Saunders, 508 A.2d at 95 (quoting Black v. Romano, 471 U.S. 606, 611, 105 S. Ct. 2254 , 85 L. Ed. 2d 636 (1985)). Appellant concedes that he violated express conditions of probation by failing to keep his appointments with the probation officer and failing to inform the probation office of his changed address. Appellant contends, however, that the trial court erred in failing adequately to consider whether his violation of the conditions warranted revocation.

In Saunders, we relied on Black, 471 U.S. at 613, in concluding that the trial court need not expressly state on the record how it balances "the competing interests of the community in safety with the rehabilitative goals of probation." Saunders, 508 A.2d at 95 n.6. This is especially true where the probationer is afforded an opportunity to show "not only that he did not violate the conditions, but also that there was a justifiable excuse for any violation or that revocation is not the appropriate Disposition." Black, 471 U.S. at 612. Our review of the record supports the trial court's Conclusion that appellant had violated the express conditions of his probation, that appellant did not provide any justifiable excuse for those violations, and that appellant contested the revocation. Under these circumstances, when appellant was afforded the procedural safeguards of written notice of the claimed violations and an opportunity to be heard, we find no abuse of discretion.

V.

In sum, we conclude that appellant did not receive an unlawful sentence under D.C. Code § 24-104. When a trial court revokes probation ordered after suspension of sentence imposition, the court "may impose any sentence which might have been imposed [at the time of original sentence]." Id. However, because appellant was a youth offender, § 24-803 (d) required the trial court to make an explicit finding on the record that appellant would "not derive benefit from" continued YRA treatment before the court could lawfully impose an adult sentence. Therefore, we remand the case for the trial court to determine whether appellant would have benefited from continued YRA treatment. If the court finds appellant would not have benefited, the judgment shall be deemed affirmed. If the court finds appellant would have benefited, appellant should be resentenced.

Case remanded.


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