Appeal from the Superior Court of the District of Columbia; (Hon. Nan R. Huhn, Trial Judge)
Before Terry, Steadman, and King, Associate Judges.
The opinion of the court was delivered by: Terry
TERRY, Associate Judge : In November 1985 appellant and two co-defendants, James Dixon and William Montgomery, were found guilty of possession of heroin with intent to distribute it (PWID). *fn1 Several months before trial the government had filed with the court and served on appellant a document entitled Information as to Two or More Prior Felony Convictions." This document served to notify the court and appellant of the government's intention to seek, in the event of a conviction, a sentence greater than what would otherwise be the statutory maximum. *fn2 In February 1986 the trial court imposed on appellant an enhanced sentence of twelve to thirty-six years imprisonment.
In April 1988 appellant filed a pro se motion to vacate his sentence pursuant to D.C. Code § 23-110 (1989), asserting inter alia that his sentence had been illegally enhanced. After an evidentiary hearing, the trial court denied the motion and let the original sentence stand. Appellant contends here, as he did below, that he lacked notice of the prior convictions on which the government intended to rely in seeking the enhanced sentence. The government disagrees and argues that, in any event, appellant is barred from challenging his sentence now because this issue should have been raised on direct appeal. *fn3 Although we agree that it would have been the better practice to raise this issue on direct appeal, we decline to decide the case on that ground because the government did not assert it in the trial court in opposing the § 23-110 motion. On the merits of appellant's claim, we hold that appellant had the notice required by D.C. Code § 23-111 (a)(1) (1989), *fn4 and that the trial court acted according to law in imposing the enhanced sentence. Accordingly, we affirm the denial of the § 23-110 motion.
A. Appellant's conviction and sentence
In February 1985, nine months before trial, the government filed with the court and served on appellant an "Information as to Two or More Prior Felony Convictions" in accordance with section 23-111 (a)(1). *fn5 The information stated that appellant was
the same person who on Nov. 11, 1977, was previously convicted of Armed Robbery in the Superior Court of the District of Columbia; and on June 17, 1980 was convicted of Armed robbery in the Superior Court of the District of Columbia and on June 17, 1980, was convicted of carrying a pistol without a license in the Superior Court of the District of Columbia. Therefore, upon conviction of a felony in the case herein, the defendant becomes subject to the increased punishment provided by 22 D.C. Code § 104 (a) [ sic ]. *fn6 Punishment under this section allows any sentence up to life imprisonment.
The evidence at trial showed that appellant and his two co-defendants were involved in distributing heroin in the District of Columbia on September 28, 1983. The jury found all three defendants guilty as charged. At appellant's sentencing hearing, defense counsel said that his client was "challenging" the prior convictions. The prosecutor, upon learning this, told the court that he did not have in his possession the documents necessary to prove the convictions, explaining that he "had been given no indication that this would be an issue at this juncture." The trial court continued the sentencing for a week.
At the next hearing a week later, the 1977 armed robbery conviction was quickly verified by court documents. As to the 1980 conviction for "armed robbery," defense counsel said that his client "wants me to take exception to the District Court conviction as being a frivolous basis for life papers in that it was not armed -- he didn't plead to the armed offense." *fn7 The court replied that it did not matter whether the robbery was armed or not *fn8 because even unarmed robbery is a felony, and any felony is enough to support an enhanced sentence under D.C. Code § 22-104a. The court then sentenced appellant to twelve to thirty-six years, to be served consecutively to any other sentence.
B. Post-appeal proceedings
Several months after this court affirmed appellant's conviction on direct appeal, see note 3, (supra) , appellant filed a pro se motion under section 23-110 presenting several arguments, one of which was a challenge to the validity of his enhanced sentence. *fn9 Through appointed counsel, appellant argued that his sentence was improperly enhanced because the trial court did not give him an opportunity to challenge the convictions prior to sentencing *fn10 and because the government included erroneous material in the information filed with the court and served on him. The government conceded that errors existed in the information but asserted that they were merely clerical in nature, were harmless, and in no way prejudiced appellant.
The court held a hearing on the § 23-110 motion which revealed nothing that it had not already known at the time of appellant's sentencing in February 1986. Appellant introduced the transcript of the 1980 proceeding in which he had pleaded guilty to robbery and noted that the robbery conviction was in the United States District Court, not in the Superior Court as the government had stated in its information. At the end of the hearing, the court denied the motion, ruling that the errors in the information were merely clerical and that appellant had ...