July 12, 2007
WILLIAM RICHARDSON, APPELLANT,
UNITED STATES, APPELLEE.
Appeal from the Superior Court of the District of Columbia (F-288-02) (Hon. Wendell P. Gardner, Jr., Trial Judge).
The opinion of the court was delivered by: Ruiz, Associate Judge
Argued December 9, 2003
Before WASHINGTON, Chief Judge, and RUIZ and GLICKMAN, Associate Judges.
This appeal presents us with the task of interpreting the trial court's authority to impose split sentences and supervised release within the context of the determinate sentencing regime adopted by the Council of the District of Columbia in 2000, the Truth in Sentencing Amendment Act of 1998, D.C. Law 12-165, D.C. Code § 24-403.01(2001), pursuant to congressional direction in the National Capital Revitalization and Self Government Improvement Act of 1997. We hold that the law does not permit concurrent terms of probation and supervised release and that, when imposing a split sentence, the trial court must suspend the term of supervised release in its entirety. We therefore remand the case so that the trial court can restructure appellant's sentence in accordance with this opinion.
After appellant pled guilty to one count of escape in violation of D.C. Code § 22-2601 (2001), the trial court imposed a sentence of three years of incarceration, with all but one year suspended, to be followed by two years of supervised probation, and three years of mandated supervised release, with the periods of probation and supervised release to run concurrently. During the sentencing hearing, appellant asked the trial court to suspend the term of supervised release given that the sentence already included a term of probation. In support of his request, appellant asserted that concurrent terms of probation and supervised release could lead to conflict between the court (which supervises probation) and the U.S. Parole Commission (which supervises D.C. offenders on supervised release pursuant to D.C. Code § 24-403.01 (b)(6)).*fn2 In addition, appellant suggested that if supervised release was not suspended, he could serve more time in prison than the sentencing court intended, because he could be subject to revocation of supervised release by the Parole Commission as well as revocation of probation by the court. The trial court was of the view that it did not have authority to suspend the period of supervised release required by statute, and that probation was not in lieu of the mandatory term of supervised release. As a result, the trial court concluded that pursuant to D.C. Code § 24-403.01 (b)(5), it was required to sentence appellant to concurrent terms of supervised release and probation.
Because appellant poses a question of statutory interpretation, our review is de novo. See District of Columbia v. Morrissey, 668 A.2d 792, 795-96 (D.C. 1995). We begin with the plain language of the statute, see Peoples Drug Stores, Inc. v. District of Columbia, 470 A.2d 751, 753 (D.C. 1983), but if we find individual sections to be capable of more than one reading, our task is to search for an interpretation that makes sense of the statute and related laws as a whole. See Carey v. Crane Serv. Co., 457 A.2d 1102, 1108 (D.C. 1983). Lastly, we turn to legislative history to ensure that our interpretation is consistent with legislative intent. See Peoples Drug Stores, Inc., 470 A.2d at 754.
A. The D.C. Truth In Sentencing Act
As the question before us concerns application of certain provisions of the D.C. Truth in Sentencing Act, we think it useful to review the process that led to its enactment. In the National Capital Revitalization and Self-Government Improvement Act of 1997 ("Revitalization Act"), Congress established the District of Columbia Truth in Sentencing Commission ("TISC") "as an independent agency of the District of Columbia." Revitalization Act, Pub. L. No. 105-33, § 11211, 111 Stat. 712, 740-41 (1997).*fn3 Congress directed TISC to "make recommendations to the District of Columbia Council for amendments to the District of Columbia Code with respect to the sentences to be imposed for all felonies committed on or after [August 5, 2000]." § 11212 (a), 111 Stat. at 741. Specifically, Congress mandated that TISC recommendations meet "the truth in sentencing standards of [section] 20104(a)(1) of the Violent Crime Control and Law Enforcement Act of 1994." § 11212 (b)(1), 111 Stat. at 741. By doing so, parole was abolished with respect to certain offenses in the District of Columbia,*fn4 and the D.C. sentencing system that then provided indeterminate sentences with the possibility of parole, had to be converted to a system of determinate sentences with no parole. See Revitalization Act, § 11212 (b)(2)(C), 111 Stat. 741; D.C. Code § 24-112 (b)(1) (referring to 18 U.S.C. § 13704 (a)(1)); D.C. Council Report on Bill 12-523 at 3-4. Persons convicted of covered offenses are required to serve no less than 85 percent of any sentence imposed. See D.C. Code § 24-403.01(d) (referring to 18 U.S.C. § 3624 (b)).
In addition, the TISC recommendations had to ensure that, for all felony offenses, "an adequate period of supervision [would] be imposed to follow release from [any] imprisonment." See Revitalization Act, § 11212 (b)(2)(C), 111 Stat. 741. Offenders were to "be subject to the authority of the United States Parole Commission until the completion of the term of supervised release," id. at § 11233 (c)(2), 111 Stat. 749, and the Parole Commission was to "have and exercise the same authority as is vested in the United States district courts by" 18 U.S.C. § 3583 (d)-(I). In January 1998, TISC submitted its "Formal Recommendations" to the Council of the District of Columbia followed by a "Commentary and Suggestions Report" (March 1998) in which it discussed its recommendations. Consistent with the Revitalization Act, it recommended that all felons receive an adequate period of supervised release following incarceration. Specifically, TISC recommended that the Council adopt a provision stating that "If an offender is sentenced to imprisonment . . . the court shall impose an adequate period of supervision to follow release from the imprisonment . . . ." In addition, TISC recommended that the Council create an advisory sentencing commission to review pertinent sentencing data and use it to make further recommendations to the Council for establishing a fair sentencing system. As a result, in 1998 the Council created an Advisory Commission on Sentencing ("Advisory Commission").*fn5 See "Advisory Commission on Sentencing Establishment Act of 1998," D.C. Law 12-167, D.C. Code § 3-101 et. seq. (2001). In 1998, the Council also adopted the determinate sentencing system recommended by TISC for felonies committed on or after August 5, 2000, including mandatory terms of supervised release under the U.S. Parole Commission. See "The Truth in Sentencing Amendment Act of 1998," D.C. Law 12-165, D.C. Code § 24-403.01.*fn6
Following the Council's enactment of TISC's recommendations, the Advisory Commission issued a memorandum dated July 15, 2002, to "Judges, Assistant United States Attorneys and members of the Defense Bar," which addresses areas of possible confusion regarding determinate sentencing, including the manner in which split sentences should be imposed under the new sentencing scheme. In defining a "split sentence" the Advisory Commission stated that "[a] split sentence must have these elements: an imposed prison sentence, an imposed period of supervised release, suspension of some, but not all, of the prison time, suspension of all of the supervised release term, and an imposed period of probation, not to exceed 5 years, to follow release from the unsuspended portion of the prison time."
In addition, the Advisory Commission provided a formula for sentencing courts that would allow them to achieve the imposition of an effective split sentence:
To impose a legal split sentence, the court should impose the prison sentence it wants the defendant to serve if probation is later revoked and impose the amount of supervised release that it must impose with that prison sentence. Then the court should suspend the amount of prison time it wants to suspend and suspend all the supervised release time. The court should then set an appropriate term of probation. The court must impose a term of supervised release because the law says that every felony sentence must be followed by an adequate period of supervised release.
The Advisory Commission explained that judges should suspend the mandated term of supervised release when imposing split sentences because otherwise "anomalous results" could occur if an offender was simultaneously subjected to the supervision of the court and of the U.S. Parole Commission. Specifically, the Advisory Commission stated that "the court must suspend the imposed term of supervised release when it is imposing a split sentence because the felony sentence will not be completely served and the supervised release will not begin unless and until probation is revoked and the defendant serves the unsuspended portion of the original prison sentence . . . ."*fn7
B. Split Sentences and Supervised Release
Judges of the Superior Court have traditionally imposed "split sentences" -- a period of incarceration followed by a period of probation -- under D.C. Code § 16-710 (a) (2001), which grants the trial court discretionary authority to suspend the imposition or execution of a sentence, or a portion thereof, "for such time and upon such terms" as the court deems appropriate.*fn8 If the court chooses to suspend the sentence, "the court may place the defendant on probation under the control and supervision of a probation officer." D.C. Code § 16-710 (a). Under the new determinate sentencing system that went into effect in 2000, in sentencing for covered offenses, a judge is required to impose "a period of supervision" or "supervised release" following a period of "imprisonment or commitment." D.C. Code § 24-403.01 (b)(1).*fn9 Although the new determinate sentencing system mandates the imposition of specified terms of supervised release, and does not revoke the trial court's authority to suspend part of the sentence and place the defendant on probation, it is silent as to how the two objectives are to be accomplished. The question before us is how the statutorily-required period of supervised release is to be imposed when a judge chooses to also impose a period of probation following incarceration (a split sentence).
The trial court in this case chose to impose a split sentence.*fn10 In deciding to impose probation and the newly-required supervised release concurrently in this case, the trial court reasoned that although section 24-403.01 (b)(5) states that supervised release "runs concurrently" with probation, parole or supervised release for "another offense," the words "another offense" modified only the phrase "supervised release" and not the term "probation" or parole."*fn11 On appeal, the government argues that the trial court's interpretation is erroneous given that the word "another offense" refers not only to the words "supervised release," but also to the words "parole" and "probation." We agree and conclude that section 24-403.01 (b)(5) does not sanction appellant's sentence because that subsection provides for concurrent imposition of supervised release only when appellant is also subject to probation, parole, or supervised release for an offense other than the one giving rise to the current sentence, which, by express congressional mandate, is no longer eligible for parole. As we discuss infra, the trial court should have imposed, and then suspended, the term of supervised release.
We recognize that D.C. Code § 24-403.01 does not by its terms expressly grant sentencing courts the authority to suspend the required supervised release terms.*fn12 That authority must be implied, however, in order to effectuate the court's authority to impose a term of probation pursuant to D.C. Code § 16-710, which was not expressly repealed by Congress in the Revitalization Act, nor by the Council in the Truth in Sentencing Act. "[R]epeals by implication are not favored." U.S. Parole Comm'n v. Noble, 693 A.2d 1084, 1087 (D.C. 1997), opinion adopted in U.S. Parole Comm'n v. Noble, 711 A.2d 85, 86 (D.C. 1998) (en banc). "In the absence of any express repeal or amendment, [a] later statute is presumed to be in accord with the legislative policy embedded in [a] prior statute  so as to allow the prior and later statutes to be construed together." Strickland v. United States, 199 F.3d 1310, 1315 (Fed. Cir. 1999) (citation omitted); see also United States v. Young, 376 A.2d 809, 813 (D.C. 1977) ("In the absence of an express statement of congressional intent, the courts are obligated to permit enforcement of both statutes.") (citation omitted). Implied repeal will only be found where provisions in two statutes are in "irreconcilable conflict," Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 367, 381 (1996), or where the latter act covers the whole subject of the earlier one and "is clearly intended as a substitute." See Radzanower v. Touche Ross & Co., 426 U.S. 148, 154 (1976). Here, there is no irreconcilable conflict between the provisions of D.C. Code § 24-403.01 (b), mandating imposition of supervised release, and D.C. Code § 16-710, authorizing the sentencing judge to suspend part of the sentence and impose probation under court supervision, nor does the imposition of probation dispense with the requirement to impose supervised release (as the trial judge recognized). As we now explain, both provisions can be harmonized consistent with the legislative intent behind D.C. Code § 24-403.01 (b).
As the Advisory Commission noted, suspension of supervised release when a split sentence is imposed preserves a goal of the new sentencing scheme to provide post-incarceration supervision because a defendant will in all cases be subject to a "period of supervision to follow release from imprisonment," Revitalization Act § 11212 (b)(2)(C), 111 Stat. at 741,*fn13 but without incurring the risk of conflicting supervisory authorities.*fn14 In the context of a split sentence, supervised release and probation both occur after incarceration and provide "supervision after release," United States v. Reyes, 48 F.3d 435, 438 (9th Cir. 1995), and, except for the different supervising authority, they are in other ways "functional[ly] equivalent." Jones, 669 A.2d at 727 (noting that a "supervised release revocation hearing is the functional equivalent of a probation or parole revocation hearing" with similar evidentiary rules, guidelines and standards of proof). For example, in this case, the court sentenced appellant to three years of incarceration, and suspended two years in favor of probation, with a concurrent term of three years of supervised release. Following the one year in prison, appellant would be subject to two different supervisory authorities -- by the court during two years of probation and by the U.S. Parole Commission during the three years of supervised release -- with the possibility of conflicting determinations concerning modification or revocation of the probation/supervised release. Had the sentencing court suspended the three-year supervised release term during the pendency of probation, appellant would serve one year of incarceration, followed by "a period of supervision," D.C. Code § 24-403.01 (b)(1), -- in this case, probation -- of two years exclusively under court supervision. If appellant successfully completes the probationary term, the suspended period of supervised release never takes effect because, by definition, it must follow "release from imprisonment or commitment." Id. Consistent with the statutory mandate that "the term of supervised release commences on the day the offender is released from imprisonment," D.C. Code § 24-403.01(b)(5) (emphasis added), if the court decides to execute the remainder (or any part) of the suspended sentence where an offender violates the conditions of probation, the term of supervised release would take immediate effect upon "release from imprisonment."*fn15 At that time, appellant would no longer be under court supervision, but subject solely to supervision by the U.S. Parole Commission, which could under its rules, revoke appellant's supervised release and impose a further term of imprisonment pursuant to the statute. See D.C. Code § 24-403.01 (b)(7).
In sum, we agree that the recommendations of the Advisory Commission on Sentencing provide a sound application of the pertinent statutes, that give effect to the language and purpose of D.C. Code § 24-403.01 (b) with respect to supervised release, while maintaining the longstanding authority of Superior Court judges to impose split sentences under D.C. Code § 16-710, while avoiding possible conflicts with concurrent supervisory authority by the court and the U. S. Parole Commission. We vacate the imposition of concurrent terms of probation and supervised release and remand the case to the sentencing court for reimposition of appellant's sentence in accordance with this opinion.