July 22, 1993
MONROE L. COLEMAN, APPELLANT
UNITED STATES, APPELLEE
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 received the requisite notice, prior to trial, of the convictions on which the government intended to rely in seeking an enhanced sentence. *fn11
A. Appellant's failure to challenge his sentence on direct appeal
The government asserts that appellant's present challenges to the sentence enhancement proceedings should have been raised on direct appeal and that his failure to do so requires us, without more, to reject his claims. The government relies on Head v. United States, 489 A.2d 450 (D.C. 1985), which states, as do a number of other cases, that
relief under § 23-110 is appropriate only for serious defects in the trial which were not correctible on direct appeal or which appellant was prevented by exceptional circumstances from raising on direct appeal. . . . Where a defendant has failed to raise an available challenge to his conviction on direct appeal, he may not raise that issue on collateral attack unless he shows both cause for his failure to do so and prejudice as a result of his failure.
Id. at 451 (citations omitted); see United States v. Frady, 456 U.S. 152, 167-168, 71 L. Ed. 2d 816, 102 S. Ct. 1584 (1982). In order to promote finality, the government says, this court must not allow appellant to attack a judgment perfected by appeal and to raise issues now that should have been raised in the direct appeal. See Head, supra, 489 A.2d at 451. Since appellant has not shown good cause for his failure to raise the issue earlier, the government maintains, we should not even consider his arguments on the merits.
We readily acknowledge the importance of finality in a judgment, perfected by appeal and not subject to collateral attack except on a showing of cause and prejudice. Indeed, we have said that a procedural rule prohibiting collateral attacks based on issues that could have been raised on direct appeal, but were not, "does not appear to violate due process even where constitutional issues are at stake." Doepel v. United States, 510 A.2d 1044, 1046 n.4 (D.C. 1986) (citations omitted). In this case, however, the government did not make its finality argument in the trial court, as it has conceded both in its brief and at oral argument, but offers it for the first time on this appeal. Because it was not raised below, we decline to consider the government's Head argument now. See, e.g., Williams v. United States, 576 A.2d 700, 701 n.1 (D.C. 1990); Miller v. Avirom, 127 U.S. App. D.C. 367, 369-370, 384 F.2d 319, 321-322 (1967). We turn accordingly to the merits.
B. The propriety of the enhanced sentence
Appellant argues that the government failed to provide him with notification of the "specific basis" for his sentence enhancement and therefore deprived him of his "constitutional and statutory rights to notice of the punishment he faced," a deprivation which in turn "destroyed his ability to make an intelligent decision as to whether or not to go to trial and subject himself to enhanced penalties upon conviction." The crux of appellant's argument is that the case law requires that a defendant be given "actual notice" of the convictions that form the basis for a sentence enhancement, and that because he did not receive totally accurate notice of the 1980 robbery conviction, it was improper for the court to rely on it in imposing sentence. This argument misconstrues the relevant cases.
It is well settled that before a sentence may be enhanced under D.C. Code § 22-104a, the procedures set forth in D.C. Code § 23-111 must be strictly followed. Norman v. United States, supra note 7, 623 A.2d at 1168; Lucas v. United States, 602 A.2d 1107, 1110 (D.C. 1992) (citing cases); Logan v. United States, supra note 7, 591 A.2d at 852; Shepard v. United States, 538 A.2d 1115, 1119 (D.C. 1988). Compliance with the statutory scheme first requires the government to file before trial an information alleging previous convictions. D.C. Code § 23-111 (a)(1); Boswell v. United States, 511 A.2d 29, 31 (D.C. 1986). Next, "the trial court shall, after conviction but before pronouncing sentence, inquire whether the convicted person affirms or denies the allegations in the information." Id. (citing D.C. Code § 23-111 (b)). Appellant's contention here is that he did not, in the first instance, have notice of the convictions on which the government intended to rely in seeking an enhanced sentence.
In Arnold v. United States, 443 A.2d 1318, 1323-1328 (D.C. 1982), this court discussed the notice requirement in some detail. We said that the requirement was satisfied if the information filed by the government made the defendant "aware" that it was seeking an enhanced sentence and permitted him an "adequate opportunity to determine whether to plead guilty or proceed to trial." Id. at 1328. In Logan v. United States, supra note 7, we said that "where a defendant receives clear notice of a previous conviction, a misstatement as to a single piece of information, such as the date of a conviction or the county in which a conviction was imposed, is deemed harmless." 591 A.2d at 853 (footnote omitted). Appellant in his brief places emphasis on the court's use of the words "clear notice"; the Logan opinion, however, makes clear that the real significance of the notice requirement is that it allows the defendant to decide before trial whether to plead guilty or to go ahead and let the case be tried. Id. at 852. In determining whether the defendant had sufficient notice to make that decision, the Logan court followed several state courts and applied a harmless error test. See id. at 853 & n.3 (citing state cases).
Application of the Logan test here compels the Conclusion that appellant had adequate notice of the prior convictions and that the particular errors in the government's information of which he now complains were harmless. In this case as in Logan, "the adequacy of the notice is clear from [appellant's] successful challenge" of the purported "armed robbery" conviction in 1980 set forth in the information. Id. at 853. Appellant stated at the sentencing hearing that the government had incorrectly listed the conviction as one for armed robbery, rather than robbery. The date of the conviction, however, was correct, and it was plain that appellant knew exactly what the conviction was for and when it occurred, even though the court in which he had been convicted was incorrectly identified. The only Conclusion to be drawn from this record is that appellant, several months before his trial began, was on notice of the actual convictions on which the government intended to rely in seeking an enhanced sentence. Since the "overriding statutory purpose" *fn12 was satisfied, we hold that the errors in the government's information were harmless. To rule otherwise would reward defendants who remain silent when they discover minor factual errors in an information of previous convictions filed by the government, saving the errors in their hip pocket to be revealed later if the trial does not go their way. This court will not countenance such tactics.