Appeals from the Superior Court of the District of Columbia CF3-24783-08 CF1-18464-08 (Hons. Robert I. Richter and Frederick H. Weisberg, Trial Judges)
The opinion of the court was delivered by: Oberly, Associate Judge:
Before GLICKMAN and OBERLY, Associate Judges, and KING, Senior Judge.
On January 27, 2009, a jury convicted appellant Marcel A. Johnson of kidnapping, first-degree sexual abuse, and robbery. One month later, on February 27, 2009, Johnson pled guilty to unrelated charges of assault with a dangerous weapon ("ADW") and possession of a firearm during a crime of violence ("PFCV").
Johnson was sentenced for both the January and February charges on May
15, 2009. On appeal he argues that the sentences imposed upon him were
illegal because they "will not provide [him], a person with
disabilities who is still eligible for special education under the
Individuals with Disabilities Education Act [('IDEA')],*fn1
with needed educational training." We hold that the
sentencing courts appropriately determined that given Johnson's
crimes, the danger he posed to the community was too great to sentence
him to the type of facility that his lawyers requested. To the extent
Johnson believes that the Bureau of Prisons ("BOP") may be denying him
services to which he is entitled, Johnson's claims should be presented
to the BOP in a civil action.
Johnson "has had a number of academic, psychiatric, and socially adaptive difficulties since he was very young" and has been diagnosed as having, inter alia, a learning disorder, mild mental retardation, and posttraumatic stress disorder. Accordingly, he has received special education and related services pursuant to an Individualized Education Program ("IEP") under IDEA since at least 1999. IDEA dictates that children with special needs "be given 'a free appropriate public education that emphasizes special education and related services designed to meet their unique needs.'" In re C.S., 804 A.2d 307, 314 (D.C. 2002) (Reid, J., concurring) (quoting 20 U.S.C. § 1400 (d)(1)(A) (2000)). Children like Johnson, who are identified as disabled and have an IEP in place prior to being incarcerated, remain entitled to IDEA services during their incarceration. See 20 U.S.C. § 1412 (a)(1)(B)(ii).
Johnson appeared before Judge Richter on the morning of May 15, 2009, to be sentenced on the ADW and PFCV charges to which he pled guilty. Johnson's counsel urged the court to allow the parties to "locate a [secure] treatment facility" that would provide "four years of services and treatment" until Johnson turned twenty-two and "age[d] out of special ed,"*fn2 at which point he could be transferred to an adult prison. Judge Richter, mindful that Johnson was being sentenced later that afternoon on the more serious charges of kidnapping, sexual abuse, and robbery, stated that "[i]f this were the only case Mr. Johnson was facing I have no doubt that [what Johnson's counsel proposed] is what's best for Mr. Johnson. . . . I know he's going in front of Judge Weisberg today for sentencing on a much more serious case. It would be [the] expectation that he's going to receive a long adult sentence there, and that I think is a reality that has to color whatever I do." Judge Richter sentenced Johnson to twenty-four months for ADW and sixty months for PFCV, with the sentences to run concurrently.
Johnson appeared for sentencing before Judge Weisberg later that afternoon. His attorneys argued again for the opportunity to locate a "residential facility that [could] educate him," but Judge Weisberg responded that Johnson was "simultaneously, one of the most damaged and one of the most dangerous individuals [he had] encountered in a long career of encountering both damaged and dangerous individuals," and sentenced Johnson to 276 months in prison, "to be served . . . consecutively to . . . Judge Richter['s] sentence."
In September 2009, Johnson filed motions to correct, vacate, or set aside each of his two sentences pursuant to D.C. Code § 23-110 (2001) and Super. Ct. Crim. R. 35. He argued that he should have been sentenced under "the District of Columbia Youth Rehabilitation Act" to "ensure . . . that [he] has access to the special education and related services to which he is entitled as a matter of law," and that his May 15, 2009, sentences were illegal because they "resulted in his placement in a BOP facility . . . [where he] is not and cannot receive those IDEA services to which he is entitled." According to Johnson, a "failure to ensure access to those services constituted disability discrimination" and thus his sentences "violated the Americans with Disabilities Act (ADA)*fn3 and § 504 of the Rehabilitation Act.*fn4 " Each sentencing judge denied Johnson's motion on the ground that he was in the wrong forum, holding that "[t]o the extent that [Johnson] wishes to argue that his conditions of incarceration deny him disability accommodations to which he is entitled under federal law, these arguments must be addressed to the Federal Bureau of Prisons."
On appeal, Johnson argues that the trial judges violated D.C. Code § 24-403.01 (a) (2011 Supp.), which requires a court to impose a sentence that "(1) [r]eflects the seriousness of the offense and the criminal history of the offender; (2) [p]rovides for just punishment and affords adequate deterrence to potential criminal conduct of the offender and others; and (3) [p]rovides the offender with needed educational or vocational training, medical care, and other correctional treatment." Johnson claims that § 24-403.01 (a) imposes a "mandatory duty" upon a sentencing judge to select a type of institution*fn5 that provides for all of the enumerated factors, and that the sentencing judges violated the statute by imposing sentences that would be served in an adult prison that does not provide him with IDEA services. The government argues, inter alia, that the BOP can provide Johnson with education services and that, in any event, the three provisions in § 24-403.01
(a) do not create "a mandatory, legally enforceable sentencing rubric."
Johnson did not rely on D.C. Code § 24-403.01 (a) in his motions to correct, vacate, or set aside his sentences, nor did he argue during either of his May 15, 2009, sentencing hearings that the statute governed the trial courts' sentencing decisions. Johnson has not waived this argument, however, because everyone present at each hearing, including the judges, was discussing and contemplating the very factors that are enumerated in § 24-403.01 (a). "[P]arties on appeal 'are not limited to the precise arguments they made below' in support of their claims," Abdus-Price v. United States, 873 A.2d 326, 332 n.7 (D.C. 2005) (quoting Yee v. City of Escondido, 503 U.S. 519, 534 (1992)), "and even if a claim was not pressed below, it properly may be addressed on appeal so long as it was passed upon." Id. (quotation marks omitted); see also Tindle v. United States, 778 A.2d 1077, 1082 (D.C. 2001) (To avoid the plain error standard on appeal, a trial court must be "fairly apprised as to the question[s] on ...