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09/15/92 EDGAR L. APPLEWHITE v. UNITED STATES

September 15, 1992

EDGAR L. APPLEWHITE, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Gladys Kessler, Trial Judge)

Before Rogers, Chief Judge, and Terry and King, Associate Judges.

The opinion of the court was delivered by: Terry

TERRY, Associate Judge:

Appellant pleaded guilty to two counts of second-degree burglary *fn1 and was sentenced to consecutive prison terms of five to fifteen years on each count. Execution of that sentence was suspended, however, and appellant was placed on supervised probation for five years. As one of the conditions of his probation, he was required to enter and complete a rehabilitation program at Second Genesis, a well-known local drug treatment facility. When he failed to meet this condition and certain others, appellant's probation was revoked. From the order of revocation he appeals; we affirm.

I

Appellant entered the Second Genesis program in May 1988, just a few days after he was sentenced. A little more than a year later, in June 1989, the sentencing Judge received a letter from Second Genesis stating that appellant had "absconded from treatment." The Judge issued a bench warrant, but later quashed it and allowed him to remain on probation pending a further report from the probation officer. Several months later, after appellant had been arrested on a new charge in Maryland, the court issued an order directing him to show cause why his probation should not be revoked.

Following several postponements, a probation revocation hearing was scheduled for October 26, 1990. Appellant failed to appear for that hearing, however, and another bench warrant was issued. When appellant was arrested on that warrant on November 14, he tested positive for cocaine and opiates. At a hearing the next day, the probation officer, Jerry Hardy, sought revocation of appellant's probation based on his failure to comply with the original conditions imposed at the time of sentencing in 1988. Defense counsel conceded that appellant had violated the terms of his probation. *fn2 The court remarked that "those violations would clearly support revocation," and counsel replied, "That's correct." Accordingly, counsel agreed that a preliminary hearing to determine probable cause (Peters I) was unnecessary and that a final revocation hearing (Peters II) should be scheduled. *fn3 Pending the Peters II hearing, the court ordered appellant to be held without bond.

Three hearings were held over the next three months. At the first of those hearings, appellant's counsel told the court that appellant had tested positive for the human immunodeficiency virus (HIV), which causes the disease known as acquired immune deficiency syndrome, or AIDS. Counsel asked that appellant be placed under house arrest, in lieu of probation revocation, so that he might receive outpatient treatment at the Whitman-Walker Clinic, which specializes in the treatment of persons who have AIDS or are HIV-positive. The court declined to put appellant under house arrest, however, unless his wife appeared in open court and acknowledged that she was aware of his HIV-positive status. Appellant's counsel replied that this proposal was "fair enough." The court referred the matter to the probation department to determine whether appellant would be a suitable candidate for house arrest.

At the second hearing several weeks later, Mr. Hardy, the probation officer, again recommended that appellant's probation be revoked because, even given his medical condition, he would not be likely to abide by his conditions of probation. Appellant's stepmother told the court that he could live with her in the event of his release. She also suggested that if his probation were transferred to North Carolina, he could live there with his mother. Appellant's wife was not present, however, and the court expressed its continuing concern about the wife's apparent ignorance of his medical condition *fn4 and its own lack of access to medical information about appellant's health. Mr. Hardy agreed to secure appellant's medical records for the court, and the case was continued pending their receipt.

At the next hearing appellant's counsel notified the court that appellant's wife, who like her husband was a drug user, had also contracted the AIDS virus. Mr. Hardy once again argued for revocation, and the prosecutor concurred, asserting that appellant's release might pose a risk to "other persons in the community whom he may also infect" because of his history of intravenous drug use. Mr. Hardy reminded the court that appellant's "probation was not all that good" and that he had been "uncooperative" in his dealings with the probation office. Appellant's counsel conceded that there had been "less than consistent compliance with probation," but urged the court not to order revocation. The court then announced that it would not hold a further hearing, but would review the medical records (which had not yet arrived but were "on their way to Mr. Hardy") and enter an appropriate order promptly thereafter.

Three weeks later the court issued a written order revoking appellant's probation and directing him to "serve the underlying sentence." In its order the court commented: "Defendant is a drug user and probably contracted his disease through the sharing of drug paraphernalia. Because of his addiction, the Court has substantial fears that if released he would continue his drug use and further jeopardize the health and safety of others in the community." *fn5

II

Appellant maintains that he was denied his right to be present at sentencing when the trial court revoked his probation in a written order, instead of convening a new sentencing hearing. Appellant was originally sentenced in May of 1988; he makes no claim that he was denied his right to be present *fn6 and to allocute *fn7 at that time. He contends instead that he was entitled to a second opportunity to allocute upon the trial court's revocation of his probation. This contention is without merit because he was not resentenced when his probation was revoked. *fn8

D.C. Code § 24-104 (1989) gives to the court which grants probation to a convicted defendant the power to revoke that probation and to "require [the defendant] to serve the sentence or pay the fine originally imposed, or both . . . or any lesser sentence. If imposition of sentence was suspended, the court may impose any sentence which might have been imposed." The trial court in the instant case, upon revoking appellant's probation in 1991, simply ordered into effect the prison sentence which it had imposed and then suspended in 1988. The court did not modify that sentence, add to it, or subtract from it. We therefore hold, like the majority of the federal courts in comparable cases, that a defendant need not be given an opportunity to allocute again when a sentencing court revokes probation and orders that a previously imposed sentence take effect. United States v. Coffey, 871 F.2d 39, 41 (6th Cir. 1989); United States v. Core, 532 ...


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