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BRAGDON v. U.S.

September 10, 1998

ANTHONY E. BRAGDON, APPELLANT,
V.
UNITED STATES, APPELLEE.



APPEAL FROM THE SUPERIOR COURT, HARRIETT R. TAYLOR, J. [717 A2d Page 879]

Before Wagner, Chief Judge, King, Associate Judge, Retired[fn*], and Mack, Senior Judge. [fn*] Judge King was an Associate Judge of the court at the time of argument. His status changed to Associate Judge, Retired, on September 1, 1998.

The opinion of the court was delivered by: King, Associate Judge, Retired:

In this case we are asked to decide whether a sentencing judge, when sentencing a defendant on multiple charges under the Youth Rehabilitation Act ("YRA"), *fn1 may impose the sentences consecutively. We conclude that consecutive sentences in those circumstances are permissible.

The governing facts are not in dispute. On April 30, 1992, after a jury had convicted Bragdon of single counts of armed assault with intent to commit rape and possession of a firearm during a crime of violence, the trial court, (Judge Harriett R. Taylor) imposed a sentence of fifteen years under the YRA for each charge. *fn2 Judge Taylor did not specify, either at the time of imposing sentence or in the judgment and commitment order, whether the sentences were to run concurrently or consecutively. On direct appeal, the convictions were affirmed. *fn2

Subsequently, assertedly after learning that the Department of Corrections regarded the sentences to be consecutive, Bragdon filed a motion for Correction and Reduction of Sentence pursuant to the applicable court rule. *fn3 Judge Kennedy, sitting in place of Judge Taylor who was not available, denied the motion. This appeal followed. Bragdon contends that the adult sentencing rule requiring multiple sentences to be served consecutively, unless the judge specifies otherwise, does not apply to sentences under the YRA. A reasonable interpretation of the applicable statutes does not support Bragdon's position; therefore, we affirm.

Resolution of this issue turns upon the interrelationship between two separate statutes governing the sentencing of offenders by courts in the District of Columbia. The first, which was enacted by Congress in 1970, provides in relevant part, that "[a] sentence imposed . . . for conviction of an offense shall, unless the court imposing such sentence expressly provides otherwise, run consecutively to any other sentence imposed . . . for conviction of an offense. . . ." D.C.Code § 23-112 (1996 Repl.) (emphasis added). The second provision, the YRA, which was enacted by the Council of the District of Columbia ("Council") in 1985, allows the court, where it finds that a youthful offender will derive benefit from sentencing under its, provisions, to sentence the offender for treatment "up to the maximum penalty of imprisonment otherwise provided by law." D.C.Code § 24-803(b). [717 A2d Page 880]

Bragdon does not dispute that if the sentences imposed here were adult sentences, § 23-112 would apply and, because the judge was silent on the point, the sentences would run consecutively. He argues, however, that the same rule does not apply to YRA sentences. He does so even though there is nothing in any of the provisions of the YRA to suggest or indicate that multiple sentences under the YRA are not controlled by the clear requirement of § 23-112 that "a sentence imposed . . . for conviction of an offense shall . . . run consecutively" unless the sentencing judge "expressly provides otherwise." We think that the two provisions must be read together with the terms of each given full effect. "[W]hen two statutes are capable of co-existence it is the duty of the courts, absent a clearly expressed [legislative] intention to the contrary, to regard each as effective." Morton v. Mancari, 417 U.S. 535, 551, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974). Applying that principle to the circumstances presented here persuades us that consecutive YRA sentences are not only permissible, but required unless the sentencing judge provides otherwise.

Not only is there no expression of legislative intent that the two provisions should not co-exist, we are satisfied that a fair interpretation of the language in the YRA indicates that the Council intended that sentencing under the YRA would be guided by other generally applicable sentencing provisions, including § 23-112. For example, the YRA provides that the sentencing judge may impose a sentence "up to the maximum penalty of imprisonment otherwise provided by law." D.C.Code § 24-803(b) (emphasis added). Another passage provides that "[s]ubsections (a) through (e) [which includes sub-section (b) quoted in the previous sentence] provide sentencing alternatives in addition to the options already available to the court." D.C.Code § 24-803(f) (emphasis added). In the language of the YRA, § 23-112 is clearly an "option[ ] already available to the court" which is "otherwise provided by law." In sum, the language of the YRA is entirely consistent with the notion that the Council intended that the terms of that act would coexist with other sentencing provisions in effect when it was enacted. Therefore, we conclude that there is no basis for Bragdon's contention that the consecutive sentencing mandate of § 23-112 does not apply to sentences imposed under the YRA.

Bragdon also argues that because the YRA was modeled on an earlier federal statute governing sentencing of youthful offenders, which did not permit consecutive sentences, the YRA also does not allow for consecutive sentences. Specifically, Bragdon refers to the Federal Youth Corrections Act ("FYCA") which was repealed in 1984. *fn4 To be sure, this court has held that one FYCA sentence could not run consecutive to another FYCA sentence previously imposed, Royster v. United States, 361 A.2d 165, 166 (D.C. 1976), and federal courts have held that consecutive FYCA sentences could not be imposed on each of several counts, See, e.g., Price v. United States, 384 F.2d 650, 652 (10th Cir. 1967). It does not follow, however, that consecutive sentences may not be imposed under the YRA.

As Bragdon correctly observes, to fill the gap left by the repeal of the FYCA, the Council enacted the YRA. See, e.g., Smith v. United States, 597 A.2d 377, 380 n. 2 (D.C. 1991). As we said above, however, there is nothing in the language of the YRA indicating that the consecutive sentencing provisions of § 23-112 do not apply to YRA sentences. Moreover, because the FYCA was a federal statute it can not be seriously argued that a District of Columbia statute, i.e., § 23-112, would have any effect upon it. The same cannot be said of the YRA however, because both it and § 23-112 are statutes applicable only in the District of Columbia.

Finally, unlike the YRA, the plain language of the FYCA specifically limited the duration of time that a youth offender could be incarcerated and measured the termination date of sentences imposed thereunder from the date of conviction. See Royster, [717 A2d Page 881]

supra, 361 A.2d at 166 (citing 18 U.S.C. § 5010(b), 5017(c)). Thus, in Royster, this court determined that

the imposition of consecutive FYCA sentences is tantamount to amending the statute because it permits the release date of a youth offender to be computed from the termination of a prior FYCA sentence and not, as statutorily required, "from the date of [appellant's] conviction."

Id. (footnote omitted). The YRA imposes no such limitations, and provides specifically for any sentence up to the maximum provided ...


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