Before Steadman and Reid, Associate Judges, and Pryor, Senior
The opinion of the court was delivered by: Reid, Associate Judge
Appeal from the Superior Court of the District of Columbia
(Hon. Stephen G. Milliken, Plea Judge) (Hon. Eric T. Washington, Trial Judge)
In this case, appellant Daniel W. Brawner, raises constitutional arguments against the deferred sentencing agreement which he executed with the United States Attorneys office. The agreement deferred sentencing in connection with his plea of guilty to a charge of assault of Revondra Payne, *fn1 in violation of D.C. Code §22-504 (1996). It also granted to the United States the exclusive right to determine whether Brawner violated any condition of the agreement and, in case of violation, to seek sentencing immediately. After the United States terminated the agreement, the trial court sentenced Brawner, in part, to 180 days of incarceration, 90 days suspended, and one year of probation. Brawner asserts on appeal that the deferred sentencing agreement violates the constitutional separation of powers principle and the Due Process Clause of the Fifth Amendment to the Constitution of the United States. We affirm, applying the plain error standard of review.
The record before us reveals that Brawner was arrested on April 14, 1997, for assaulting his girlfriend, Ms. Payne. He entered a plea of not guilty on April 21, 1997. Trial was set for September 12, 1997. On that day, he and his attorney signed a deferred sentencing agreement ("the sentencing agreement" or "the agreement") with the United States which was discussed at a hearing before he changed his plea to guilty.
At the September hearing the trial judge, the Honorable Stephen G. Milliken, reviewed the provisions of the sentencing agreement with Brawner after he answered, "[y]es I have," to the trial court's question: "Have you read every word of this agreement?" Specifically, the trial judge reviewed the four conditions set forth in the agreement, informing Brawner that:
You must not violate any law or any [c]court [o]rder. If you are arrested, you have to tell the Court. You must refrain from engaging in any assault [or] threatening behavior against Ravon Drey (sic) . . . . You must enroll in and successfully complete the domestic violence intervention program.
The trial judge also made certain that Brawner, who was thirty-four years old at the time, was born in the United States, and had completed two years of college, understood the sentence in the agreement which read: "The determination of whether the defendant has violated any of the above conditions rests exclusively with the United States." Brawner declared that he understood the provision, but still wished to enter a guilty plea and defer sentencing. His counsel raised no objection.
After explaining to Brawner his right to proceed to trial, the process for trial and appeal, and what would happen if he violated the sentencing agreement, the trial judge asked the prosecutor to describe the evidence against Brawner on the assault charge. The prosecutor indicated that Brawner argued with Ms. Payne on April 14, 1997, and intentionally "struck her in the face and grabbed her around the neck. And her neck was broken during this incident." *fn2 Brawner agreed that the prosecutor's account of the events was true, and entered his guilty plea. Sentencing was scheduled for June 10, 1998.
In March 1998, the government gave notice of its intention to seek sentencing of Brawner on the April 1997 assault charge because he violated the conditions of his sentencing agreement by punching Ms. Payne in her face with his fist on January 19, 1998, leaving her with a swollen left eye. Brawner again was arrested and charged with assault for this incident. Although Brawner sought to postpone sentencing on the first assault on the ground that "there was no basis for the second charge of assault," the sentencing judge, the Honorable Eric T. Washington, declined to put off the sentencing. He stated:
As it was explained to . . . the defendant and as it's the Court's understanding, once the defendant agrees to this deferred sentencing plan, he agrees basically to be subject to the Government's recall of that plan at any time, for any reason, without having the Government have to go to any proof that in fact the reasons other than their assertion that he violated the terms of the deferred agreement are applicable.
When the trial judge denied the request for a continuance, defense counsel noted an objection. Counsel neither challenged the deferred sentencing agreement which he and Brawner signed, nor mentioned the constitutional principle of separation of powers. Nor did he raise a due process objection. In addition, Brawner made no effort to withdraw his guilty plea. The government emphasized that Brawner had entered a guilty plea to the first assault and that Ms. Payne's injuries had been severe. Brawner's counsel retorted: "[T]he government has not met its burden for any sentence in this case." Furthermore, counsel stated: "I object and my allocution is that the Government has submitted no competent and/or relevant evidence to support its position on allocution." The trial court reiterated the government's arguments concerning Brawner's guilty plea and the severity of Ms. Payne's injuries, and also noted that the government did not rely on the second assault as a basis for sentencing on the first assault. In addition, the trial court declared that in requesting sentencing on the first assault, "[t]he Government has ...