Appeal from the Superior Court of the District of Columbia (CTF1129-05) (Hon. Harold L. Cushenberry, Jr., Trial Judge).
Decided December 20, 2007; (Amended July 17, 2008)*fn1
Before WASHINGTON, Chief Judge, and REID and THOMPSON, Associate Judges.
Appellant, the District of Columbia, appeals the trial court's judgment in which it declined to enhance appellee Mark L. Fitzgerald's penalty for driving under the influence in the District of Columbia, in violation of D.C. Code § 50-2201.05 (b)(1)(A) (2001). Mr. Fitzgerald previously was convicted of operating a motor vehicle after illegally consuming alcohol, in violation of Va. Code Ann. § 18.2-266.1 (2004). D.C. Code § 50-2201.05 (b)(4) requires a conviction under "substantially similar laws of any other state" to be "considered a conviction" for purposes of the penalty enhancement provision. We hold that D.C. Code § 50-2201.05 (b)(1) (2001) and Va. Code Ann. § 18.2-266.1 (2004) are substantially similar, and thus, the trial court was required to enhance Mr. Fitzgerald's penalty under D.C. Code § 50-2201.05 (b)(1)(B). Accordingly, we vacate Mr. Fitzgerald's sentence and remand this case to the trial court for resentencing.
The record reveals that on June 11, 2003, Mr. Fitzgerald was convicted in the General District Court of Fairfax County, Virginia for the criminal offense of driving after illegally consuming alcohol, in violation of Va. Code Ann. § 18.2-266.1 (A) (2004). The offense occurred on April 25, 2003. At the time of the offense, Mr. Fitzgerald was twenty-years-old. Following his conviction, his license was suspended for six months.
On August 4, 2005, Mr. Fitzgerald, then twenty-two years of age, waived his right to a jury trial and agreed to enter a guilty plea to the charge of driving under the influence per se in the District of Columbia, in violation of D.C. Code § 50-2201.05 (b)(1)(A) (2001). The government's proffer of proof revealed that on February 15, 2005, at approximately 11:50 p.m. in the 2400 block of K Street, Northwest, Officers Proctor and Fair of the Metropolitan Police Department were conducting speeding enforcement when they heard a vehicle engine racing on Washington Circle Bridge. The vehicle was stopped at a red light and when it turned green, the officers "observed a red Ford Mustang speeding toward them at a high rate of speed." The car "came to a hard stop behind the [police] cruiser." Officer Fair approached the driver's side of the car where Mr. Fitzgerald was seated, and detected a strong odor of alcohol. He asked Mr. Fitzgerald "when was the last time he consumed alcohol." Mr. Fitzgerald responded, "45 minutes to an hour ago." Officer Proctor asked Mr. Fitzgerald to step out of the vehicle and conducted three field sobriety tests. Mr. Fitzgerald showed signs of alcohol impairment, and "subsequently stated that he had consumed four beers." Mr. Fitzgerald also consented to the performance of a chemical test, the results of which revealed a blood/alcohol level of .10.
The District noted that Mr. Fitzgerald had a prior conviction in the state of Virginia for driving after illegally consuming alcohol, and that the government had reserved the right to use previously filed enhancement papers.*fn2 The trial court agreed that the enhancement papers were properly filed, but took the position that the Virginia offense was a juvenile matter, that the filing of enhancement papers did not "mean [that the court] ha[d] to enhance [Mr. Fitzgerald's] punishment."*fn3 In light of Mr. Fitzgerald's Virginia conviction, the District recommended that the trial court impose a sentence of "364 days, ESS, all but 5 days with one year of supervised probation," as well as a $1,000.00 fine, a payment of $100.00 to the crime victims compensation fund, conditions relating to the traffic alcohol program, and alcohol treatment. However, the trial judge imposed a sentence of ninety days with execution suspended, six months supervised probation, a $300 fine, a $100 contribution to the Victims of Crime Fund, and completion of the TAP program.
Following the issuance of the original decision in this case, Mr. Fitzgerald filed petitions for rehearing and rehearing en banc, which the District opposed. The Public Defender Service for the District of Columbia ("PDS") requested leave to enter as amicus curiae and to file a brief, in support of Mr. Fitzgerald's petitions. Subsequently, on April 9, 2008, we granted the request of PDS. PDS raised an issue which was not raised during Mr. Fitzgerald's original appellate proceeding, "whether this court lacks jurisdiction to adjudicate this case."*fn4 In our April 9, 2008, order, we permitted the parties, and amicus to submit supplemental briefs on the following questions: "(1) Whether this court had jurisdiction over the District government's appeal, and if not, (2) Whether this court may regard the District's brief as a petition for writ of mandamus to review [Mr. Fitzgerald's] unauthorized sentence." On May 22 and 23, the parties and amicus lodged briefs in response to the order.
In its supplemental brief, the District argues that "this [c]court has jurisdiction over a government appeal of an unauthorized sentence order," and if it does not, this court may "treat the District of Columbia's brief as a Petition for Writ of Mandamus" to "review the [trial court's] unauthorized order refusing to apply the mandatory minimum sentence" in this case. Mr. Fitzgerald argues, in essence, that the District waived its statutory authority to appeal the trial court's decision not to take into consideration his Virginia conviction in sentencing him, and therefore, this court lacks jurisdiction over the District's appeal. He further claims that mandamus is inappropriate in this case. Amicus contends that not only does this court lack jurisdiction over the District's appeal, but also that "this [c]court may not use the extraordinary writ of mandamus under the circumstances presented here. . . ."*fn5
In their analysis of the questions presented for consideration by this court's April 9, 2008, order, Mr. Fitzgerald and PDS insist that there is no statutory basis for a government appeal of appellee's sentence in this case, and hence, this court lacks jurisdiction to hear the District's appeal. They contend that this court's jurisdiction under D.C. Code § 11-721 is limited to orders issued under D.C. Code §§ 23-104 (which is not applicable here), or 23-111 (d)(2); and that the District failed to meet the express terms of § 23-111 (d)(2) with respect to its appeal.*fn6
We are doubtful that this court's jurisdiction is as limited as Mr. Fitzgerald and PDS contend, as D.C. Code § 11-721 (a)(1) gives this court "jurisdiction of appeals from  all final orders and judgments of the Superior Court of the District of Columbia.." However, we need not delve into PDS' and Mr. Fitzgerald's statutory arguments, pertaining to the alleged lack of authority for the District's appeal of Mr. Fitzgerald's sentence and this court's jurisdiction, because our case law permits us to consider the government's appellate brief as a petition for writ of mandamus. As we said in United States v. Stokes, 365 A.2d 615 (D.C. 1976), "we proceed to the merits of this appeal by regarding the government's brief as a petition for a writ of mandamus, a recognized means of reviewing an allegedly unauthorized sentence." Id.at 617 (citations omitted). This practice is consistent with that followed in other jurisdictions. See Minnesota v. Hoelzel, 639 N.W.2d 605, 610 (Minn. 2002) (construing state's appeal as a petition for writ of mandamus where trial judge found defendant guilty of first-degree burglary but refused to enter judgment on that finding);*fn7 People ex rel. Waller v. McKoski, 748 N.E.2d 175, 179-80 (Ill. 2001) (issuing writ of mandamus where trial court refused to impose mandatory consecutive sentences, as required by statute);*fn8 People v. The District Court of the City and County of Denver, 673 P.2d 991, 995 (Colo. 1983) ("The correction of an illegal sentence is an extraordinary cause for which mandamus is available"; "[a] court may not impose a sentence that is inconsistent with the terms specified by statutes.") (citations omitted); see also United States v. Lane, 284 F.2d 935, 938, 942 (9th Cir. 1960) (approving writ of mandamus as "an available remedy in an appropriate case," where the trial court imposed probation even though the applicable statute prohibited probation) (citing Ex parte United States, 242 U.S. 27 (1916)).
Despite these authorities, PDS and Mr. Fitzgerald contest the applicability here of the mandamus route used in Stokes, supra, primarily because they believe (a) mandamus would undermine important constitutional principles of separation of powers; (b) the government never filed a petition for writ of mandamus; and (c) the District cannot meet the stringent requirements for mandamus.*fn9 Treating the District's brief as a petition for a writ of mandamus would not undermine the constitutional doctrine of separation of powers. That doctrine "is concerned with the allocation of official power" among the three branches of government, and is designed to preclude "encroachment or aggrandizement of one branch [of government] at the expense of the other."*fn10 Encroachment or aggrandizement can be seen "where the whole power of one department is exercised by the same hands which possess the whole power of another department," or where one branch of government "undermine[s] the authority and independence of one or another coordinate [b]ranch."*fn11 Rather than undermining legislative authority or aggrandizing the power of the judiciary, permitting mandamus in this case would result in the enforcement of the mandatory statutory penalty governing Mr. ...