April 12, 2001
LINDA PERNELL, APPELLANT,
UNITED STATES, APPELLEE.
Before Schwelb, Ruiz and Reid, Associate Judges.
The opinion of the court was delivered by: Reid, Associate Judge
Appeal from the Superior Court of the District of Columbia Criminal Division
Hon. Linda D. Turner, Trial Judge
Argued December 18, 2000
After a bench trial, appellant Linda Pernell *fn1 was convicted of possession of a controlled substance (cocaine), in violation of D.C. Code § 33-541 (a)(1) (1998). On appeal, Ms. Pernell contends, in part, that the trial court erred by failing to impose probation without judgment under D.C. Code § 33-541 (e). *fn2 We affirm.
At trial, the government's evidence showed that, on May 28, 1998, at approximately 5:20 p.m., Officer Jeffrey Colleli, a fourteen-year veteran of the Metropolitan Police Department ("MPD"), was conducting a drug surveillance operation in an elevated observation post near the 5400 block of 7th Street, N.W., in the District. Officer Colleli testified that this area was selected for the operation because it was "very well known for its open-air drug markets, mainly cocaine."
As Officer Colleli was observing this area, he noticed "Ms. Pernell approach a subject later known as Mr. King . . ., [and] [a]fter a brief conversation[, observed] Mr. King [go] into . . . an open area, like a vacant lot." Although his observation post was actually "30 [to] 40 feet" away from her, Ms. Pernell appeared to be "within about 5 feet" of Officer Colleli, due to his use of "binoculars." About "a minute" after his departure, Mr. King returned, and "dropped . . . two small objects  to the ground." Officer Colleli then saw "Ms. Pernell hand [Mr. King] a[n unidentified] sum of money . . . , ben[d] down [,] pick up the objects[,] and . . . walk south on 7th Street." Based upon this observation, Officer Colleli proceeded to broadcast a lookout to an arrest team located in the immediate area.
Officer Garvin, an eight-year veteran of the MPD who has participated in "500 to  various [drug] cases," and Officer Cutler, responded to the broadcast and "stopped [Ms. Pernell] in front of 5304 7th Street, [N.W.]" Officer Garvin testified that he observed Pernell "drop two Ziplocs of white rock substance to the ground from her right hand." After Officer Cutler retrieved the discarded Ziplocs, and immediately discovered that they tested positive for cocaine, Ms. Pernell was placed under arrest for possession of cocaine.
Ms. Pernell testified as the sole defense witness. Although she admitted that she spoke with Mr. King on the day in question, she denied engaging in a drug transaction with him, and stated that she at no time was in possession of cocaine.
Following the completion of a bench trial, Ms. Pernell was found guilty of possession of cocaine. As the trial judge stated:
[T]he court has heard the evidence in the case and finds the defendant guilty on the count of possession of cocaine beyond a reasonable doubt. The court, in viewing and weighing the testimony of the officers as opposed to Ms. Pernell, resists the defendant's testimony. . . . [T]he court believed the officers beyond a reasonable doubt.
Prior to sentencing, defense counsel requested that Ms. Pernell be sentenced under § 33-541 (e). In denying his request, and sentencing Ms. Pernell to 180 days in prison, with all but ten days of that sentence suspended, in lieu of six months of supervised probation, the trial judge stated:
[H]aving considered the request of Ms. Pernell to be sentenced under [§ 33-541 (e)] probation, the use of that is not appropriate in this circumstance.
It's the court's view [that § 33-541 (e)] is designed for the person who makes a mistake and has a drug problem, and the defendant stands before the court and says to the court, I've made a mistake, I really want a second chance, Judge. And [§ 33- 541(e)] is designed for the purpose to help so that that person can get their lives back together.
Ms. Pernell simply indicated she was wrongly convicted and that's her right to do. She does not have to personally accept the court's verdict. The court does not believe that [§ 33-541 (e)] is the appropriate avenue here.
The day following sentencing, Ms. Pernell filed a motion for reduction of sentence. After making several unsworn allegations, such as she had no babysitter for her four-year-old daughter and did "not now know the whereabouts of her daughter," Ms. Pernell stated: "The court declined to sentence [her] under Section 33-514 (e) because she . . . disagreed with the version of the officers." The trial court denied the motion, concluding that Ms. Pernell "ha[d] not set forth any factors that the court did not consider at the time of sentencing." Ms. Pernell filed a timely appeal.
Ms. Pernell contends that the trial court committed plain error when it "forged a uniform rule for applying its discretion under [§ 33-541 (e)]." She maintains that the trial court abused its discretion in sentencing her because it did so based upon an impermissible "uniform policy" which effectively denies § 33-541 (e) sentencing benefits to "those who do not recognize their drug problem, or their mistake, [and those] who have not asked the court for a second chance."
"[T]he decision to sentence under section 33-541(e) . . . is entrusted to the trial court's discretion." Houston v. United States, 592 A.2d 1066, 1067 (D.C. 1991). However, "[w]e will . . . reverse a trial court's ruling on a matter within its discretion when the trial court, while recognizing its right to exercise discretion, 'declines to do so, preferring instead to adhere to a uniform policy . . . .'" Id. (quoting Johnson v. United States, 398 A.2d 354, 363 (D.C. 1979)) (citations omitted). "'[T]he discretion called for . . . is the exercise of discretion in individual cases, not the discretion of the trial judge to adopt a uniform policy . . . in all cases irrespective of circumstances. . . .'" Id. (quoting United States v. Queen, 140 U.S. App. D.C. 262, 263, 435 F.2d 66, 67 (1970) (footnote omitted) (other citation omitted)).
During sentencing, the trial judge asked defense counsel whether he wished to say anything in support of his request for sentencing under § 33-541 (e). He responded:
Well, she clearly has never been convicted. She's never been guilty until now. I think this [provision] is one that is enacted by the legislature to sentence people like Ms. Pernell. We call for basically a period of probation and we also ask that at the time she completes the [probation] . . ., this conviction be expunged.
In response, the government asked for the full 180 day sentence. Section 33-541 (d) authorizes a sentence of not more than 180 days, a fine of $1,000, or both. Ms. Pernell interjected that: "I didn't lie about what I was testifying to."
The trial court then considered the request for sentencing under § 33-541 (e). First, the trial court explained her understanding of § 33-541 (e) and what it was designed to accomplish. Second, the trial court concluded that Ms. Pernell failed to show why she should be sentenced under § 33-541 (e). Obviously the court was bothered by the fact that Ms. Pernell "simply indicated that she was wrongly convicted." In that regard, the judge clearly concluded that Ms. Pernell was guilty, lied under oath, and showed no remorse for her actions. Indeed, Ms. Pernell's own words at sentencing revealed her understanding of the trial judge's conclusion that she had not been candid or truthful during her testimony: "I didn't lie about what I was testifying to." Nonetheless, the trial judge also was unpersuaded by the government's argument that the maximum 180 day sentence should be served by Ms. Pernell. Consequently, the judge exercised her discretion not only to deny § 33-541 (e) relief, but also to suspend execution of the maximum 180 day sentence under § 33-541 (d) in favor of ten days of incarceration, followed by six months of supervised probation. Similarly, the trial judge exercised her discretion in denying the motion for reduction of sentence. Nothing in Ms. Pernell's motion reflected remorse, or any basis for the trial court reversing its determination that Ms. Pernell had lied under oath.
Contrary to Ms. Pernell's assertions, the trial court's statement prior to sentencing does not amount to the type of "uniform policy" that this court deemed to be an abuse of discretion in Houston, supra. In Houston, supra, the trial judge stated: "I don't give 541(e) when people are involved in selling and buying hard drugs, heroin and cocaine." Id. at 1067. This statement reflected "the discretion of the trial court to adopt a uniform policy" rather than "the exercise of discretion in [an] individual case." Id. Unlike the judge in Houston, the trial judge in Ms. Pernell's case exercised her discretion in Ms. Pernell's individual case. Ms. Pernell had no statutory entitlement to be sentenced under § 33-541 (e). The plain language of the statute specifies that the trial judge "may" defer sentence and place the individual on conditional probation. As the legislative history of this section reveals: "The court's decision whether or not to apply the provisions of this section to an eligible offender is discretionary. . . ." Council of the District of Columbia, Committee on the Judiciary, Report on Bill 4-123, "the District of Columbia Uniform Controlled Substances Act of 1981," April 8, 1981, at 30.
Ms. Pernell's case does not fall within the very limited exceptions to the principle established by our precedents, that "it is not our role to review sentences which are within statutory limits." Walden, supra, 366 A.2d at 1077; see also In re L.J., 546 A.2d 429, 434 (D.C. 1988). For example, "we are authorized to re-examine the sentencing process where it is alleged that the judge totally failed to exercise [her] discretion in imposing sentence." United States v. Stoddard, 180 U.S. App. D.C. 209, 213, 553 F.2d 1385, 1389 (1977) (emphasis added); L.J., supra, 546 A.2d at 435 (quoting Stoddard, supra). As we have shown, there was no total failure to exercise discretion in this case. Indeed, the pivotal reason why the trial court decided not to sentence Ms. Pernell under § 33-541 (e) was her lack of candor. In that regard, we have held, as has the Supreme Court of the United States, that in imposing a sentence within statutory limits, the judge may properly take into account the fact that a defendant gave false testimony during her trial. Banks v. United States, 516 A.2d 524, 530 (D.C. 1986) (citing United States v. Grayson, 438 U.S. 41 (1978)). That is what the trial judge did in sentencing Ms. Pernell. Furthermore, the trial judge undoubtedly concluded that Ms. Pernell's statement in her motion for reduction of sentence, that she was denied § 541 (e) relief because she "disagreed with the version of the officers," merely confirmed her lack of candor. In short, we see no abuse of discretion.
Accordingly, for the foregoing reasons, we affirm the judgment of the trial court. *fn3
Ruiz, J., Associate Judge, dissenting in part:
I agree with the majority except on the issue of the application of D.C. Code § 33-541 (e). On that issue, I believe the case should be reversed and remanded because the trial court abused its discretion by adopting and implementing in appellant's case a "uniform rule" that impermissibly limited its consideration of appellant for probation under § 33-541 (e).
In essence, section 33-541 (e) *fn4 provides that a judge "may, without entering a judgment of guilty and with the consent of such person," place the person on probation for no more than a year on such reasonable conditions as the court may provide. Violation of the terms of probation may, in the discretion of the judge, subject the person to conviction and sentencing for drug possession. If the person is placed on probation and observes the conditions imposed by the judge, however, the person is entitled to discharge and dismissal of the proceedings without adjudication of guilt. Once discharged, the person is not deemed to have a conviction and thus is not subject to "disqualifications or disabilities imposed by law upon conviction of a crime . . . or for any other purpose." D.C. Code § 33-541 (e)(1). Upon discharge and dismissal, the person may obtain expungement of "all official records," *fn5 including arrest, indictment or information, trial, finding of guilt, dismissal and discharge. See D.C. Code § 33-541 (e)(2). The purpose, in short, is to "restore such person, in the contemplation of this law, to the status he or she occupied before such arrest or indictment or information." Id. For example, a discharged person whose records have been expunged does not commit perjury and is not considered to give a false statement "by reason of failure to recite or acknowledge such arrest, or indictment, or trial in response to any inquiry made of him or her for any purpose." Id.
The foregoing recitation of the provisions of § 33-541 (e) makes clear that its application bestows important benefits that go beyond the outcome of the immediate criminal proceeding and can have an impact on a person's subsequent activities in school, employment, etc. The question presented by this appeal is a new one, concerning the scope of the trial court's discretion in determining who is eligible for consideration for such beneficial treatment.
It is easy to reject appellant's contention that a trial court must apply § 33- 541 (e) so long as a person meets the minimum requirements set out in the statute: the person is a first-time drug offender, is found guilty of drug possession and consents to disposition under subsection (e). The statute expressly states that the court "may" defer proceedings and place the person on probation. See D.C. Code § 33-541 (e)(1). Elsewhere in the same subsection (e), the statute provides that the court "shall" discharge the person if the conditions of probation are met, and "shall" issue an order expunging the records if the person was discharged and the proceedings dismissed. See id. Therefore, the trial court's discretion whether to impose probation in the first instance is plain. See Houston v. United States, 592 A.2d 1066, 1067 (D.C. 1991).
The more substantive claim on appeal is that the trial court abused its discretion by impermissibly adopting an across-the-board or uniform rule as to when it would consider disposition under § 33-541 (e). Specifically, appellant contends that the trial court incorrectly limited the universe of those it would consider eligible for § 33-541 (e) when it stated that:
It's the court's view that [§ 33-541 (e)] is designed for the person who makes a mistake and has a drug problem, and the defendant stands before the court and says to the court, I've made a mistake , I really want a second chance, Judge. And [§ 33- 541(e)] is designed for the purpose to help so that person can get their lives back together.
Ms. Pernell simply indicated that she was wrongly convicted and that's her right to do so. She does not have to personally accept the court's verdict. The court does not believe that [§ 33-541 (e)] is the appropriate avenue here.
Appellant did not so present herself to the judge when she requested probation under § 33-541 (e). Rather than admitting that she had made a "mistake," appellant maintained her innocence, stating that she had not possessed drugs and that she had been wrongly found guilty. Instead, she argued that she had never been arrested or convicted of a drug offense or any other offense, that she had a young child who primarily depended on her for care, a job that was imperiled by the jail sentence and that she was attending daily job training classes to improve her employment situation. *fn6 As a result, she contended, the judge should place her on probation under § 33-541 (e), instead of sentencing her, so as to safeguard her ability to care for her child and perform her job responsibilities. I disagree with the majority, and do not find support in the transcript for the majority's premise, that the trial court denied appellant's request for probation under §33-541 (e) because she "gave false testimony during her trial." See majority opinion, ante, at 14. In denying appellant's request for probation under § 33-541 (e), the trial court did not refer to or weigh the individual grounds appellant put forward, nor did she reason that appellant committed perjury or lacked "candor." See majority opinion, ante, at 14. *fn7 As quoted earlier, the trial court indicated only that appellant did not come within the category of persons who admitted making a "mistake" for whom § 33-541 (e) is "designed." *fn8
In Houston we held that it was an abuse of discretion for a trial court to adopt a "uniform policy" that § 33-541 (e) did not apply to "people involved in selling and buying hard drugs, heroin and cocaine." 592 A.2d at 1067-68. *fn9 When a trial court is called upon to make a discretionary ruling, as here, "it is improper for the court to refuse to decide the question as a matter of discretion, but instead purport to be bound by a hard and fast rule." Id. (citing Johnson v. United States, 398 A.2d 354, 364 (D.C. 1979)).
In this case there can be no doubt that the trial court had a policy not to apply § 33-541 (e) except to persons who, once found guilty, admitted to having a drug problem and making a mistake. That is no different, in the sense that it is a "uniform rule," than the policy we rejected in Houston that § 33-541 (e) is not available to persons found guilty of possessing hard drugs. It is particularly telling that the trial court rejected appellant's request only by reference to its view of the applicability of § 33-541 (e) to such a subcategory of persons found guilty of drug possession and did not mention at all the particular circumstances put forth by appellant as reasons why the trial court should exercise discretion in her favor. This was not "the discretion called for . . . [which ] is the exercise of discretion in individual cases, not the discretion of the trial judge to adopt a uniform policy . . . in all cases irrespective of circumstances." Houston, 592 A.2d at 1067 (text omitted in original) (quoting United States v. Queen, 140 U.S. App. D.C. 262, 263, 435 F.2d 66, 67 (1970)).
A significant difference between this case and Houston is that here, the trial court expressed its "uniform policy" in terms of what it thought § 33-541 (e) was designed to accomplish. The question becomes then, not whether the trial court had and implemented a uniform policy -the record makes clear that it had and did so in this case - but whether that policy was an abuse of discretion because it was arbitrary or permissible because it accurately reflects the purpose of § 33-541 (e). This is an issue we have not explored before.
As always, we start with the statutory language. See Rider v. U.S., 687 A.2d 1348, 1352 (D.C. 1996). Nothing in the language of § 33-541 (e) limits the category of persons who may be considered under its provisions except for three qualifications: that the person not have been convicted of a drug offense, that the person be found guilty of possession in the case under consideration and that the person consent to disposition under § 33-541 (e). The statute otherwise deals exclusively with the consequences of proceeding with probation and, if appropriate, discharge, dismissal and expungement of records. The only indication in the statute of the scope of discretion afforded the judge is the permissive "may" which we said in Houston requires the trial court to consider the circumstances in individual cases and prohibits the application of a uniform rule. *fn10 This would appear to give the trial court the broadest possible discretion to consider probation in every case of first time drug possession, depending on individual circumstances. Further, the broad remedial consequences that § 33-541 (e) mandates where the person satisfies the conditions of probation, also suggest that the trial court should take into account individual life circumstances that might be impacted if a first-time drug possessor is not given the opportunity to secure those favorable consequences. *fn11 Based on the broad statutory grant of discretion, I have no question that, as the trial court noted, a person who admits she has a drug problem and made a mistake may well be a good candidate for probation under § 33-541 (e). I disagree, however, that the statute limits consideration to only such persons. Therefore, I would reverse and remand the case on the issue of the imposition of probation under § 33-541 (e) so that the trial court may consider the particular circumstances which appellant argued should weigh in her favor.