Before Schwelb and Washington, Associate Judges, and Belson, Senior
The opinion of the court was delivered by: Washington, Associate Judge
Appeal from the Superior Court of the District of Columbia
(Hon. Jose M. Lopez, Trial Judge)
Appellant C.L.M. entered a plea of guilty to one count of simple assault, in violation of D.C. Code § 22-504 (a) (1996). The issue on appeal is whether a 1995 order committing C.L.M. to the custody of the Department of Human Services ("DHS") for a period of no more than two years was a legal disposition, so that a subsequent order vacating the initial commitment and committing her for a longer period nunc pro tunc to the date of the original order violated her rights under the Double Jeopardy Clause. Because we conclude that the trial court lacked jurisdiction to issue a subsequent commitment order, we reverse without reaching the double jeopardy issue.
On September 27, 1995, C.L.M. entered a plea of guilty to one count of simple assault. A disposition hearing was held on December 29, 1995, and on that date the trial court entered an oral and written commitment order stating that C.L.M. was to remain committed to the custody of DHS for an indeterminate period of time not exceeding two years pursuant to D.C. Code § 16-2320 (c)(2) (1997). The Assistant Corporation Counsel, who was present at the disposition hearing, neither objected to the order nor expressed any reservations regarding its propriety.
On November 6, 1997, DHS filed a progress report with the trial court requesting that C.L.M.'s commitment be extended for an additional one-year period. C.L.M. filed a written opposition to DHS' request, pointing out that the trial court had no authority to extend the commitment because the statutory provision allowing for such extensions had been removed by a 1993 amendment to D.C. Code § 16-2322. *fn1
The trial court conducted a hearing on February 6, 1998, on DHS' request to extend the commitment. The trial court assumed that C.L.M.'s argument regarding its lack of authority to order an extension was correct, but characterized the initial commitment order as an administrative error on the part of the trial court. The judge stated that it was never his intention to limit the commitment to two years. The trial court then vacated the order and entered a new disposition order, committing C.L.M. to DHS until her twenty-first birthday, nunc pro tunc to the date of the original order. A timely notice of appeal was filed on March 9, 1998.
C.L.M. argues that the trial court order vacating its original commitment order and imposing another longer term of commitment violated her rights under the Double Jeopardy Clause. The District responds that the trial court's earlier commitment order was issued in error and that it could therefore be vacated and a new commitment order issued. According to the District, a 1993 amendment to D.C. Code § 16-2322 increased the maximum term of commitment from a period of two years to an indeterminate period ending upon a youth's twenty-first birthday, and thus effectively eliminated the court's authority to set a term of commitment for less than the statutory term of "until a child's twenty-first birthday." C.L.M. contends that the District's interpretation of D.C. Code § 16-2322 (a)(4), as mandating that every commitment must extend until a child's twenty-first birthday, is erroneous and that the trial court's original disposition order specifying a commitment period of no more than two years was fully in accordance with applicable law.
D.C. Code § 16-2322 (a)(4), as amended, specifies that a commitment is to be "indeterminate" and for a period "not to exceed" the youth's twenty-first birthday. In construing the plain language of a statute, this court must give the words chosen by the legislature the "ordinary sense and meaning traditionally attributed" to them. In re M.M.D., 662 A.2d 837, 848 (D.C. 1995) (quoting Dean v. United States, 653 A.2d 307, 315 (D.C. 1995)). An "indeterminate" sentence has been defined as a sentence for a maximum period imposed either by the court or by statute, which may be terminated by the executive at any time or after service of a specified minimum period. See Story v. Rives, 68 U.S. App. D.C. 325, 97 F.2d 182, 187 (D.C. Cir. 1938); Black's Law Dictionary 771 (6th ed. 1990). In the context of indeterminate sentencing of adult offenders, the phrase "not to exceed" is used in this jurisdiction to create a statutory scheme in which the maximum period of each individual sentence is imposed by the court, and may be less than the maximum authorized by statute. See D.C. Code § 24-203 (a) (1996); Banks v. United States, 307 A.2d 767, 769 (D.C. 1973) (sentence of two to six years within statutorily prescribed limits for conviction of second degree burglary carrying maximum sentence of fifteen years); Martin v. United States, 435 A.2d 395, 397 n.3 (D.C. 1981) (lawful to impose sentence of three to nine years for forgery conviction carrying maximum sentence of ten years). Therefore, by including both the term "indeterminate" and "not to exceed" in D.C. Code § 16-2322 (a)(4), the Council of the District of Columbia authorized the court to be able to impose the minimum and/or maximum duration of the commitment, while the executive has the authority to release the child at any time within the limits set by the judge. *fn2
We have held that a statute should be interpreted so as to give effect to every word included in it by the legislature, so that "no part will be inoperative or superfluous, unless the provision is the result of obvious mistake or error." Marshall v. District of Columbia Rental Hous. Comm'n, 533 A.2d 1271, 1274 (D.C. 1987); Thomas v. District of Columbia Dep't of Employment Servs., 547 A.2d 1034, 1037 (D.C. 1988) (internal citations omitted). Subsection (a)(4) of D.C. Code § 16-2322 states that "[s]ubject to subsection (f) of this section, a dispositional order vesting legal custody of a child adjudicated delinquent or in need of supervision . . . shall remain in force for an indeterminate period not to exceed the youth's twenty-first birthday." Subsection (f) states that "[u]nless sooner terminated, all orders of the Division under this subchapter in force with respect to a child terminate when he reaches twenty-one years of age." Therefore, if D.C. Code § 16-2322 (a)(4) was intended to mean that all initial commitment orders must extend until the child's twenty-first birthday, then the "not to exceed " language is superfluous, for the result for which the District contends could have been achieved by simply stating that "subject to subsection (f), a dispositional order shall remain in force for an indeterminate period."
Furthermore, legislative history suggests that the 1993 amendment to subsection (a)(4) was not intended to make commitment mandatory until a youth's twenty-first birthday. In its analysis of the Bill, the Committee on the Judiciary described what would ...