Appeal from the Superior Court of the District of Columbia (FEL657-05) (Hon. James E. Boasberg, Trial Judge).
The opinion of the court was delivered by: Reid, Associate Judge
Before REID, GLICKMAN,and THOMPSON, Associate Judges.
Appellant, Andre D. Mitchell, was convicted after a bench trial on two counts of misdemeanor sexual abuse and one count of lewd, indecent or obscene acts.*fn1 The trial court sentenced him to 180 days of confinement, certified Mr. Mitchell as a Class B Sexual Offender pursuant to the Sex Offender Registration Act of 1999 ("SORA"),*fn2 and assessed costs in the aggregate amount of $150 pursuant to the Victims of Violent Crime Compensation Act of 1981. This Court affirmed Mr. Mitchell's convictions in a memorandum opinion and judgment.*fn3 After serving his prison sentence on the charges in this case,*fn4 Mr. Mitchell moved for a new trial pursuant to D.C. Code § 23-110 and requested a hearing, alleging ineffective assistance of counsel. The trial court denied his motion without a hearing, and concluded that the requirement that Mr. Mitchell register under the SORA within three days of his release from prison did not place him "in custody" for purposes of § 23-110. On appeal from that ruling, Mr. Mitchell contends that he is still "in custody" because he has not yet registered under SORA or paid his $150 fine, and therefore the court has jurisdiction to grant him a new trial under § 23-110. We disagree and affirm the judgment of the trial court for the reasons below.
The record shows that in December 2004, Mr. Mitchell was living with his girlfriend, R.P. in her two-bedroom apartment with her four children, including the victim in this case, nine-year-old A.P. A.P.'s grandfather also stayed in the apartment from time to time.
Sometime in late December or early January 2005,*fn5 A.P. was watching television in her bedroom when Mr. Mitchell entered the room and proceeded to engage in sexual contact with her. On another occasion some days later, while A.P.'s mother, R.P., was out of the apartment, A.P. was lying down in her mother's bedroom watching television when Mr. Mitchell entered the room and again initiated and engaged in sexual contact with her.
Several weeks passed before A.P. told anyone what had happened. In the days and weeks that followed these incidents, A.P. began to have trouble at school, although normally she was a good student and well-behaved. Her teacher called R.P. several times to report that A.P. had become disruptive and was not paying attention in class. A.P. also began wetting her bed at night.
A.P. had been sexually assaulted by her cousin,*fn6 and R.P. remembered that afterward, A.P. had been quiet and refused to talk to her. When she learned that A.P. had wet her bed, R.P. grew very concerned and called her into the bathroom to ask her what was going on. R.P. asked A.P. if anyone had been touching her, and A.P. responded by lowering her head and saying she didn't know. R.P. told her to pick up her head and asked if A.P.'s grandfather or brother had touched her. A.P. said they had not. R.P. then asked if Mr. Mitchell had been touching her, and A.P. again lowered her head and said nothing. At her mother's insistence, A.P. told her what happened.
R.P. then indirectly confronted Mr. Mitchell, saying someone had done something to hurt A.P. Mr. Mitchell responded by avoiding eye contact and remaining quiet. R.P. then ordered Mr. Mitchell out of the apartment, but about an hour later found him back in the apartment, alone behind a closed door with A.P. Enraged by Mr. Mitchell's behavior, R.P. instructed her older daughter to call 911. Upon their arrival, the police arrested Mr. Mitchell.
The government presented the testimony of A.P., R.P., and A.P.'s grandfather. Mr. Mitchell, the sole witness for the defense, denied having sexual contact with A.P., and, on cross-examination, claimed that A.P. had walked into the bathroom twice while he was naked.
After finding Mr. Mitchell guilty of three of the four counts with which he was charged, the trial court imposed a prison term of 180 days, and certified him as a Class B Sexual Offender on December 9, 2005. On May 8, 2007, months after the completion of his prison term imposed in this case, Mr. Mitchell filed a motion for a new trial under D.C. Code § 23-110. The government filed an opposition to which Mr. Mitchell replied. On September 17, 2007, the trial court ordered the parties to address the question "whether defendant is 'in custody' for purposes of filing a § 23-110 motion."
Mr. Mitchell's response to the trial court's order focused only on the SORA registration requirement, and did not mention the assessment under the Victims of Violent Crime Compensation Act. The government's reply argument examined only the SORA registration requirements, as did the trial court's order. Not until his reply brief in this Court did Mr. Mitchell broach the Victims of Violent ...