Appeal from the Superior Court of the District of Columbia (F8993-94) (Hon. Reggie B. Walton, Trial Judge) (Hon. Robert I. Richter, Re-sentencing Judge).
The opinion of the court was delivered by: Kramer, Associate Judge
Before KRAMER, BLACKBURNE-RIGSBY, and THOMPSON, Associate Judges.
This matter is before us for review of the sentence imposed upon appellant, Edward L. Robinson, following our remand for resentencing to permit the trial court to apply the principles articulated by the Supreme Court in Apprendi v. New Jersey, 530 U.S. 466 (2000). The events underlying the sentence arise from appellant's involvement in the armed robbery and murder of Charles Hagler and the kidnaping and murder of Melissa Ankrom.*fn1 At the conclusion of his trial, Robinson was found guilty of two counts of first-degree felony murder while armed and two counts of first-degree premeditated murder while armed, as well as armed robbery, armed kidnaping and other related offenses. Pursuant to the First Degree Murder Amendment Act of 1992, codified at section 22-2104.01 of the District of Columbia Code, he was sentenced to life imprisonment without parole for the murders and lesser sentences for the other convictions.
In his first appeal, see Robinson v. United States, 890 A.2d 674 (D.C. 2006), we concluded based upon the Supreme Court's holding in Apprendi that the matter must be remanded for re-sentencing because "the trial judge imposed enhanced sentences on each of the murder counts of life imprisonment without parole (LWOP) on the basis of aggravating circumstances, some of which were neither found by the jury nor coextensive with its verdicts." Id. at 685.*fn2 On this second appeal seeking review of the new sentences imposed, Robinson argues that the trial court erred in finding that aggravating factors "coextensive" with the jury's verdicts on the two counts of felony murder while armed provided a proper basis for the LWOP sentences. He also contends that a sentencing court may not rely upon vacated convictions to find the existence of aggravating factors. We affirm.
Robinson bases his argument that the trial court erred in using the felony-murder convictions to enhance the sentences for the premeditated-murder convictions on the position that the necessary facts underlying the felony-murder convictions, that is, that the felony murders were committed in the course of a robbery and a kidnaping, respectively, were not proven beyond a reasonable doubt at trial.*fn3 Moreover, he argues that the "coextensive inquiry" approach, approved by this court in Keels v. United States, 785 A.2d 672 (D.C. 2001),violates the holdings of Apprendi and the Supreme Court's later case of Blakely v. Washington, 542 U.S. 296 (2004).
In any event, Robinson argues, even if Keels is good law, because the felony-murder convictions were vacated at the conclusion of this second sentencing proceeding, the facts underlying those convictions are not available to serve as the predicate for the aggravating circumstances necessary for sentence enhancements, and accordingly, the trial court was required to sentence him to between thirty years and life and could not sentence him to life without parole. See D.C. Code § 22-2104 (a) (2001 & Supp. 2007). We hold that Robinson's felony-murder convictions, vacated on remand after the first appeal, Robinson, supra, 890 A.2d at 686, could properly be used as aggravating circumstances to enhance the penalty for first degree premeditated murder while armed to life without parole.
The pertinent portion of the First Degree Murder Amendment Act of 1992, as amended, reads:
If a defendant is convicted of murder in the first degree, and if the prosecution has given the notice required under § 22-2104 (a), a separate sentencing procedure shall be conducted as soon as practicable after the trial has been completed to determine whether to impose a sentence of more than 60 years [the statutory maximum provided absent this procedure] up to, and including, life imprisonment without possibility of release.
D.C. Code § 22-2104.01 (a) (2001).*fn4 The Act lists twelve separate aggravating circumstances that would permit imposition of an LWOP sentence on a defendant convicted of murder in the first degree. Of those factors, only two are relevant here - a murder committed in the course of a robbery, id. § 22-2104.01 (b)(8), and a murder committed in the course of a kidnaping, id. § 22-2104.01 (b)(1).*fn5 Although the Act itself does not require a finding of an aggravating factor to be made by a jury, Apprendi leaves no doubt that it must be.
In Apprendi, the Supreme Court addressed a sentencing procedure under a New Jersey hate crime statute that provided for an enhanced sentence if a trial judge found by a preponderance of the evidence that the crime was committed with the purpose of intimidating a person or group based on race. Apprendi pleaded guilty to possession of a firearm, an offense that carried a statutory penalty of five to ten years in prison. During the guilty plea proceeding, there was no mention of New Jersey's hate crime statute, nor any notice to Apprendi that the judge would be permitted to enhance his sentence beyond the statutory ten-year maximum if the judge found by a preponderance of the evidence that the defendant committed the crime to intimidate a person or group based on race. At sentencing, the judge found by a preponderance of the evidence that the underlying crime, which involved firing shots into the home of an African-American family, was done for the purpose of intimidating the members of the family because of their race. Based upon that finding, the judge sentenced Apprendi to a term of twelve years in prison, two years more than the statute for the firearms offense alone would have allowed. 530 U.S. at 469-71.
On certiorari, the Supreme Court noted that while judges historically have had - and continue to have - considerable discretion with respect to sentencing,*fn6 their discretion is bounded by the range of sentencing options prescribed by the statutes enacted by the legislatures. Id. at 481-82. Apprendi held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at ...