April 20, 2000
BILLY D. LITTLEJOHN, APPELLANT,
UNITED STATES, APPELLEE.
Before Reid and Glickman, Associate Judges, and Belson, Senior
The opinion of the court was delivered by: Reid, Associate Judge
Appeal from the Superior Court of the District of Columbia
(Hon. Ellen Segal Huvelle, Motions Judge)
Argued March 20, 2000
In this case, appellant Billy D. Littlejohn asserts that the trial court imposed an illegal sentence on him in 1986, because of its failure to make a "no benefit" determination under the Federal Youth Corrections Act ("the FYCA" or "the Youth Act"), 18 U.S.C. § 5010 (d) *fn1 prior to sentencing. We affirm the conviction.
In 1985, Littlejohn, then twenty years of age, entered a plea of guilty to one count of carnal knowledge, in violation of D.C. Code § 22-2801 (1973), and one count of taking indecent liberties with a minor, in violation of § 22-3501 (a). Prior to his sentencing, the Honorable H. Carl Moultrie I, now deceased, ordered a study under the FYCA, 18 U.S.C. § 5010 (e) *fn2 to determine whether Littlejohn would benefit from treatment and supervision as a youth. In July 1986, however, after Chief Judge Moultrie's death, another judge sentenced Littlejohn as an adult to two terms of incarceration, but the sentences were suspended and he was placed on probation. *fn3
Subsequent to the revocation of his probation in 1988, Littlejohn filed seven pro se post-conviction relief motions in the trial court between the years 1989 and 1997. *fn4 For example, on July 10, 1996, he sent a "Motion to vacate illegal sentence" to the trial court. In that motion he argued that when he was placed on five years probation in 1985, he was sentenced under the Youth Act and was illegally re-sentenced as an adult in 1988 after his probation was revoked. He asserted that "Judge Scot[t] did not follow the Youth Act guidelines for Youth Act violators." The motions judge, the Honorable Ellen Segal Huvelle, denied Littlejohn's motion. After referencing his revocation of probation, Judge Huvelle stated:
Judge Scott imposed the original sentences of 5-15 years and 3-9 years to run consecutively.
In short, the sentences imposed were exactly the same as the original suspended sentences and defendant was not sentenced pursuant to the Youth Act, so there was no need for Judge Scott to apply Youth Act guidelines to the revocation of probation. There is thus no basis for any challenge to the legality of defendant's sentence.
Littlejohn's most recent collateral attack on his sentence occurred on August 12, 1997, when he filed a petition which the motions judge, again Judge Huvelle, construed as a "pro se habeas corpus petition pursuant to D.C. Code  § 23-110 (1996)." Littlejohn stated, inter alia, that Judge Moultrie had sentenced him in 1985 to five years probation under the FYCA, and that his probation was revoked after "a technical violation." He complained that he was sentenced as an adult, rather than as a youth offender. As relief, he sought treatment as a youth offender under 18 U.S.C. § 5010 (b) or (c). *fn5 In essence, he argued that the trial court failed to make a "no benefit" determination. The government maintained that Littlejohn's "petition should be denied as a successive petition."
On April 8, 1998, Judge Huvelle denied Littlejohn's petition. She recognized that: "The [FYCA] requires that a sentencing court make a finding that a young defendant will not benefit from Youth Act treatment before sentencing him as an adult." However, she denied Littlejohn's petition on the grounds that it was "a successive claim for collateral relief" under § 23-110 (e), and constituted "an abuse of the writ because [Littlejohn] ha[d] already filed several prior § 23-110 motions without raising the 'no benefit' argument." Judge Huvelle also noted that Littlejohn had not been sentenced by Judge Moultrie in 1985, but that his sentencing had been continued several times until he was finally sentenced as an adult on July 22, 1986, by Judge Scott. Furthermore, Judge Huvelle stated in a footnote that:
Judge Scott's alleged failure to make a "no benefit" finding arguably goes to the manner in which the sentence was imposed, rather than to the legality of the sentence. Although it is contended that Judge Scott erred procedurally in failing to make a "no benefit" finding prior to sentencing defendant as an adult, it is not alleged that Judge Scott lacked jurisdiction to impose the sentence or that the sentence was in excess of the statutory maximum prescribed by the statute.
Judge Huvelle decided to address what appeared to be "[Littlejohn's] real challenge . . . [- -] Judge Scott's alleged failure to make a 'no benefit' finding at the time of sentencing (as opposed to at the probation revocation hearing) . . . ." In considering Littlejohn's challenge, Judge Huvelle cited Matos v. United States, 631 A.2d 28 (D.C. 1983) and concluded that he had not shown the required "cause for his failure to [raise the "no benefit" argument in prior collateral attacks on his sentence] and prejudice as a result of his failure." 631 A.2d at 30 (quoting Head v. United States, 489 A.2d 450, 451 (D.C. 1985) (citation omitted)). Therefore, she determined that Littlejohn was procedurally barred from making his August 1997 attack on his sentence. The trial court denied Littlejohn's motion for reconsideration.
The essence of Littlejohn's argument on appeal is that his August 1997 petition should have been treated as a motion to vacate an illegal sentence under Super. Ct. Crim. R. 35 (a) *fn6 and that the motions court abused its discretion in denying his petition. The government primarily argues that the motions court properly denied Littlejohn's petition under § 23-110, and that even if his petition had been construed as a request for Rule 35 (a) relief, he could not prevail because the petition was untimely.
In Neverdon v. District of Columbia, 468 A.2d 974 (D.C. 1983), we said: "An illegal sentence may be corrected at any time, whether the challenge to the sentence is by motion under Super. Ct. Crim. R. 35 (a) or under D.C. Code § 23-110." Id. at 975. Furthermore, we declared:
Because the sentencing court may correct an illegal sentence under Rule 35 "at any time," we think it clear that the trial court would have the power to entertain and grant appellant's second motion, notwithstanding its denial of the earlier motion to the same effect. However, as with relief under D.C. Code § 23-110 and its federal analogue, 28 U.S.C. § 2255, certain preclusion principles do apply to Rule 35 motions. A trial court may, in the exercise of discretion, refuse to entertain a second Rule 35 motion relying on objections previously advanced unsuccessfully. Id. (citing United States v. Quon, 241 F.2d 161, 163 (2d Cir.), cert. denied, 354 U.S. 913 (1957)).
We added: "Thus, although strict principles of res judicata do not apply to motions seeking relief from an illegal sentence, '[t]his does not mean that a prisoner may again and again call upon a court to repeat the same ruling. . . .'" Id. (citing United States ex rel. Gregoire v. Watkins, 164 F.2d 137, 138 (2d Cir. 1947)). See also Moore v. United States, 608 A.2d 144, 145-46 (D.C. 1992).
Putting aside, without deciding, the issue of a successive claim, and assuming, again without deciding, that the trial court should have treated Littlejohn's petition as a motion under Rule 35, we conclude that, based on the information before us, *fn7 Littlejohn was sentenced in 1986, not 1985, and that under the majority decision in Robinson v. United States, 454 A.2d 810 (D.C. 1982), his sentencing was not illegal. In Robinson we distinguished between an illegal sentence and an illegally imposed sentence:
Where the sentence is "illegal" in the sense that the court goes beyond its authority by acting without jurisdiction or imposing a sentence in excess of the statutory maximum provided, then such sentence - - because of the gravity of the error, the unqualified deprivation of one's liberty - - may be changed at any time. However, where a court of competent jurisdiction imposes a sentence within the limits authorized by the relevant statute, but commits a procedural error in doing so, it is not an abuse of discretion nor unreasonable - - when balancing concepts of fairness and finality - - to characterize this sentence as one imposed in an "illegal manner" under Rule 35 (a) and therefore subject to the 120-day jurisdictional limitation for challenge. 454 A.2d at 813.
The trial court had the jurisdiction to impose sentence on Littlejohn and its sentence was consistent with the statutory penalties for carnal knowledge and taking indecent liberties with a minor. See United States v. Ramsey, 210 U.S. App. D.C. 285, 288, 655 F.2d 398, 401 (1981) ("To rule that in the circumstances of this case, the District Court's failure to follow [the Federal Youth Corrections Act] rendered appellant's sentence an illegal sentence would ignore completely the distinction established by Congress in Rule 35 between an 'illegal sentence' and a sentence imposed in 'an illegal manner.').
We are unpersuaded by the authorities on which Littlejohn relies in contending that he was subjected to an illegal sentence. Citing Cole v. United States, 384 A.2d 651, 653 (D.C. 1978), Littlejohn argues that: "Regardless of the maximum adult sentence for a crime, in the absence of an explicit finding that an eligible defendant will not benefit from a Youth Act sentence, the only sentencing options open to the trial court are embodied in § 5010 (a), (b) and (c), which are mutually exclusive." *fn8 He also relies upon Dorszynski v. United States, 418 U.S. 424 (1974). Cole, supra, is distinguishable from Littlejohn's case. There the trial judge made an explicit finding that Cole would benefit from a FYCA sentence, but imposed an adult sentence with respect to one of the three counts on which Cole was convicted, and a FYCA sentence with regard to the other two. Cole, supra, 384 A.2d at 652. Littlejohn was sentenced as an adult on both of his convictions. Moreover, Littlejohn's contention that Judge Moultrie and Judge Scott implicitly made a "benefit" finding under the FYCA is speculative in the absence of a record showing that the judge exercised his discretion to make a "benefit" finding. *fn9 In addition, we see nothing in Dorszynski, supra, supporting Littlejohn's assertion that an illegal sentence was imposed on him under the FYCA.
The Supreme Court in Dorszynski interpreted FYCA as providing "two new alternatives to add to the array of sentencing options previously available to [federal district judges]." *fn10 418 U.S. at 433 (footnote omitted). Despite these two new alternatives, however, the Supreme Court declared that: "The legislative history [of the FYCA] clearly indicates that the Act was meant to enlarge, not restrict, the sentencing options of federal trial courts in order to permit them to sentence youth offenders for rehabilitation of a special sort." Id. at 436. These new sentencing options were procedural in nature, not substantive. As the Supreme Court stated:
The authority to sentence a youth offender under "any other applicable penalty provision" is expressly reserved to federal trial courts by § 5010 (d), and thus is within the permissible range of sentences which may be imposed under the Act. The "no benefit" finding required by the Act is not to be read as a substantive standard which must be satisfied to support a sentence outside the Act, for such a reading would subject the sentence to appellate review even though the sentence was permitted by the Act's terms, thereby limiting the sentencing court's discretion. Id. at 441.
Thus, even when a report, completed under § 5010 (e) of the FYCA, recommends youth offender treatment, "[t]he trial judge may accept the recommendation . . . [, b]ut he is also free to reject it." United States v. Dancy, 166 U.S. App. D.C. 399, 405, 510 F.2d 779, 785 (1975). *fn11
In light of our analysis, we conclude that Littlejohn was not subjected to an illegal sentence. Specifically, we hold that where the trial court imposes an otherwise legal adult sentence on a FYCA-eligible defendant without making the "no benefit" finding required by § 5010 (d) of the FYCA, the sentence is imposed in an illegal manner but is not an "illegal sentence" for purposes of Rule 35 (a).
Because Littlejohn did not assert, within the time limits set forth in Rule 35 (b), that the trial court erred in not making a "no benefit" determination under FYCA before sentencing him as an adult, his petition is untimely. Consequently, the trial court did not err in denying his petition, because "[i]t is settled that the 120-day limitation in Rule 35 is a grant of jurisdiction and may not be extended." Robinson, supra, 454 A.2d at 813 n.6 (citing McDaniels v. United States, 385 A.2d 180 (D.C. 1978) (other citation omitted)).
Accordingly, for the foregoing reasons, we affirm the judgment of the trial court.