Appeal from the Superior Court of the District of Columbia (No. F-6785-84) (Hon. Reggie B. Walton, Motions Judge)
Before Steadman and Glickman, Associate Judges, and Belson, Senior
The opinion of the court was delivered by: Glickman, Associate Judge
Submitted December 12, 2001
This is an appeal from the denial of a motion to vacate multiple armed rape and sodomy convictions on double jeopardy grounds. We hold that because the motion, which was filed pursuant to D.C. Code § 23-110 (1996), properly is viewed instead as one to correct an illegal sentence pursuant to Super. Ct. Crim. R. 35 (a), the double jeopardy claim is not barred by the movant's failure to show cause for, or prejudice from, his failure to raise it previously on direct appeal from his conviction or in other proceedings. Reaching the merits of the double jeopardy claim, we reject it. We hold that where a defendant is convicted of multiple counts of a sexual offense such as rape or sodomy, each count being for a different act committed during a "gang rape" by a different principal perpetrator, the counts do not merge, and the defendant may be punished separately and cumulatively for each count. We therefore affirm the decision on appeal.
Pro se appellant Anthony Brown was convicted in 1986 of three counts of armed rape and three counts of sodomy. The evidence at Brown's trial established that he and two co-defendants took turns raping and then sodomizing the complaining witness while they held her at gunpoint. Brown threatened to kill her if she resisted or reported the crimes. On each count of armed rape, the trial judge, Judge Robert M. Scott, sentenced Brown to a prison term of ten to thirty years, with two of the terms to run consecutively and the third term to run concurrently. Judge Scott likewise imposed two consecutive prison terms of three to nine years plus one concurrent term of the same length on each sodomy count. Brown thus received a total sentence on the armed rape and sodomy charges of twenty-six to seventy-eight years of imprisonment. This court affirmed Brown's convictions on direct appeal in Brown v. United States, 567 A.2d 426 (D.C. 1989).
Some ten years later, Brown moved pursuant to D.C. Code § 23-110 to vacate two of his armed rape and two of his sodomy convictions. In his pro se motion, Brown contended for the first time that his multiple prison terms violated the Double Jeopardy Clause of the Fifth Amendment. Brown argued that because the government had to prove the same elements for each of the three counts of armed rape and each of the three counts of sodomy with which he was charged, those counts merged after his conviction into a single offense of armed rape and a single offense of sodomy. In addition, Brown alleged that he was denied his Sixth Amendment right to effective assistance of counsel when his trial counsel failed to raise this double jeopardy claim at his sentencing.
Judge Walton, who succeeded the deceased Judge Scott for purposes of handling Brown's motion, denied the motion on its merits. Judge Walton ruled that each count of the indictment charged a separately punishable offense inasmuch as each count referred to a separate act of armed rape or sodomy that was committed by a different principal perpetrator, either Brown himself or a co-defendant whom Brown aided and abetted. Brown appealed Judge Walton's ruling to this court.
On appeal, the government asks us to affirm without reaching the merits on the ground that Brown's double jeopardy claim is "procedurally barred" by his inability to show either cause for, or prejudice from, his failure to raise it in earlier proceedings, in particular on direct appeal. If we reject that contention and reach the merits, the government argues that Judge Walton correctly ruled that Brown's convictions do not merge because Brown either committed or was complicit in three distinct armed rapes and three distinct sodomies committed by three different principal offenders. The government further argues that Brown's trial attorneys were not ineffective in failing to pursue a double jeopardy claim that was meritless. We address these issues in turn.
A motion under D.C. Code § 23-110 is not "a substitute for direct review." Head v. United States, 489 A.2d 450, 451 (D.C. 1985). "Where a defendant has failed to raise an available challenge to his conviction on direct appeal, he may not raise that issue on collateral attack unless he shows both cause for his failure to do so and prejudice as a result of his failure." Id. (citing United States v. Frady, 456 U.S. 152, 167-68 (1982)).
Taking the requirements in reverse order, if Brown's double jeopardy claim has merit, he undeniably suffered "actual and substantial" prejudice, Frady, 456 U.S. at 170, from his failure to raise it before now. Brown sustained such prejudice because at least the minimum portion of his aggregate sentence would be reduced considerably if his convictions were to merge, even if on remand the judge might resentence Brown on the surviving counts in order to effectuate, as nearly as possible, "the original sentencing plan." Bean v. United States, 606 A.2d 770, 772 (D.C. 1992) (citing Malloy v. United States, 483 A.2d 678, 681 (D.C. 1984), and Thorne v. United States, 471 A.2d 247, 249 (D.C. 1983)). As the government argues, however, Brown has not shown cause for his failure to seek merger when he had the chance to do so on direct appeal. "[T]he existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the . . . procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). The only suggestion of cause that Brown advanced in his § 23-110 petition was his conclusory allegation that his trial counsel's failure to raise his double jeopardy claim at sentencing denied him his Sixth Amendment right to effective assistance of counsel. Brown was represented by new counsel in his direct appeal, however, and he has not contended that his appellate counsel was constitutionally ineffective. See Mayfield v. United States, 659 A.2d 1249, 1252 (D.C. 1995) (citing, inter alia, Watson v. United States, 536 A.2d 1056, 1060 (D.C. 1987) (en banc)) (holding that ineffective assistance of appellate counsel is an issue that "can only be litigated through the filing of a motion to recall the mandate in [the Court of Appeals]"). Trial counsel's failure to argue for merger of counts at sentencing did not prevent appellate counsel from making the argument on appeal.
At first blush, then, Brown's attempt to assert a double jeopardy claim in his § 23-110 motion appears to be barred because Brown has not proffered cause for his failure to raise the claim in his direct appeal. But Brown's claim that the trial court imposed multiple punishments for a single offense in violation of the Double Jeopardy Clause is, in the circumstances here, a claim that his sentence was illegal. As such, it is a claim that properly is made in a motion to correct an illegal sentence pursuant to Super. Ct. Crim. R. 35 (a). See (Samuel) Byrd v. United States, 500 A.2d 1376, 1378 n.5 (D.C. 1985), adopted en banc, 510 A.2d 1035, 1037 (D.C. 1986) (treating collateral attack on concurrent sentences for premeditated murder and felony murder arising from a single homicide as made pursuant to Rule 35 (a)). It is immaterial that Brown did not cite Rule 35 (a) in his § 23-110 motion. "Since we look to the substance of appellant's pro se request for collateral relief rather than its form, we will consider appellant's entitlement to relief under Super. Ct. Crim. R. 35 (a)." Id.; accord, Norman v. United States, 623 A.2d 1165, 1167 (D.C. 1993) ("Appellant's pro se [§ 23-110] motion should have been construed by the motions judge as a Rule 35 (a) motion.").
Treating Brown's motion as made pursuant to Rule 35 (a), is it subject to the requirement articulated in Head that a § 23-110 movant must show both cause for his failure to raise his claim on direct appeal and prejudice as a result of that failure? The court left this precise question open in Norman. See 623 A.2d at 1167-68. We now hold that the cause and prejudice showing normally required for a defaulted claim in a § 23-110 motion is not required when the motion properly is viewed as a Rule 35 (a) motion to correct an illegal sentence. We come to this conclusion in light of the historical understanding of Rule 35 (a), the purposes of the cause and ...