February 16, 2012
ALAN COLTER, APPELLANT,
UNITED STATES, APPELLEE.
Appeal from the Superior Court of the District of Columbia (CF3-11256-08) (Hon. Robert I. Richter, Trial Judge)
The opinion of the court was delivered by: Fisher, Associate Judge:
Submitted January 12, 2012
Before WASHINGTON, Chief Judge, FISHER, Associate Judge, and STEADMAN, Senior Judge.
Following a non-jury trial, the court found appellant guilty of several offenses related to his shooting of two individuals, one of whom was a bystander caught in the line of fire. The only issue that merits discussion in a published opinion is appellant's claim that assault with significant bodily injury ("felony assault"), D.C. Code § 22-404 (a)(2) (2011 Supp.), is not a crime of violence. If that is true, then appellant should not have been charged with assault with significant bodily injury while armed or with a related count of possessing a firearm during a crime of violence ("PFCV"). For the reasons which follow, we agree with appellant's argument.
D.C. Code § 22-4502, the "while armed" enhancement, increases the potential term of imprisonment for a defendant who commits a "crime of violence" or a "dangerous crime" while armed with or having readily available a firearm or other dangerous or deadly weapon.*fn1
The related crime of PFCV is created by D.C. Code § 22-4504 (b) (2011 Supp.), which prohibits "possess[ing] a pistol, machine gun, shotgun, rifle, or any other firearm or imitation firearm while committing a crime of violence or dangerous crime as defined in § 22-4501." As we discuss in more detail below, the term "crime of violence" is defined in D.C. Code § 22-4501 (1) (2011 Supp.).
There is no doubt that appellant committed violent crimes, as that term is commonly understood. Here, however, we are dealing with definitions created by statute. Similarly, although the offenses in this case created a great deal of danger, assault with significant bodily injury is not a "dangerous crime."*fn2
The United States Code defines a "crime of violence" by its characteristics.*fn3
However, a very different approach was taken in the District of Columbia Code, which "defines" a crime of violence by reference to a list of the offenses so designated. Thus, D.C. Code § 22-4501 (1) provides that "'[c]rime of violence' shall have the same meaning as provided in § 23-1331(4)."*fn4 That provision states in turn:
(4) The term "crime of violence" means aggravated assault; act of terrorism; arson; assault on a police officer (felony); assault with a dangerous weapon; assault with intent to kill, commit first degree sexual abuse, commit second degree sexual abuse, or commit child sexual abuse; assault with intent to commit any other offense; burglary; carjacking; armed carjacking; child sexual abuse; cruelty to children in the first degree; extortion or blackmail accompanied by threats of violence; gang recruitment, participation, or retention by the use or threatened use of force, coercion, or intimidation; kidnapping; malicious disfigurement; manslaughter; manufacture or possession of a weapon of mass destruction; mayhem; murder; robbery; sexual abuse in the first, second, or third degrees; use, dissemination, or detonation of a weapon of mass destruction; or an attempt or conspiracy to commit any of the foregoing offenses.
D.C. Code § 23-1331 (4) (2011 Supp.).
The intermediate offense of assault with significant bodily injury -- sometimes referred to as felony assault -- was created by D.C. Law 16-306, which became effective April 24, 2007. See generally In re R.S.,6 A.3d 854, 857-58 (D.C. 2010) (discussing the legislative history of felony assault). Thatsame bill also amended § 23-1331 (4)'s list of crimes of violence in certain respects. However, whether by design or through oversight, the Council did not add the newly-created offense of assault with significant bodily injury to the list of crimes of violence.*fn5
A similar issue arose in Thomas v. United States, 93 U.S. App. D.C. 282, 210 F.2d 21 (1954), where the defendant had been convicted of robbery while armed. At that time, however, robbery was not identified as a crime of violence in D.C. Code § 22-3201 (1951), the predecessor to the current § 22-4501. Because the sentence imposed on the defendant exceeded the maximum allowable for robbery without the while armed enhancement, the United States Court of Appeals remanded for resentencing.*fn6 Similarly, the short and simple answer in our present case seems to be that assault with significant bodily injury is not a crime of violence because it does not appear on the list of such crimes.
Relying upon Parks v. United States, 627 A.2d 1 (D.C. 1993), the government asserts that the answer is not so simple. In Parks, the appellant challenged his conviction for PFCV, arguing that assault on a police officer with a dangerous weapon, the predicate offense, was not a crime of violence. That particular offense was not in fact listed as a crime of violence, but assault with a dangerous weapon was listed. This court concluded that "[a]ssault with a dangerous weapon and assault on a police officer with a dangerous weapon constitute substantially the same offense, as appellant successfully argued in the trial court." 627 A.2d at 10 (footnote omitted). We therefore affirmed the conviction for PFCV, holding that "it would defy reason and common sense to conclude that D.C. Code § 22-3204(b) [the predecessor of § 22-4504 (b)] does not apply in the present case just because the victim that appellant assaulted with a pistol was a police officer rather than an ordinary citizen."*fn7 Id.
No comparable reasoning is persuasive in the present circumstances. Unlike in Parks, the government does not point to any listed offense that is essentially the same offense as, or a lesser-included offense of, assault with significant bodily injury. Assault on a police officer (felony) may result in significant bodily injury, but that is not always true,*fn8 and, unlike the situation in Parks, the listed offense of felony assault on a police officer carries a far greater penalty than the unlisted offense of assault with significant bodily injury.*fn9
Aggravated assault is listed as a crime of violence, but that offense requires a far more serious injury and it also has a significantly higher penalty (imprisonment for not more than ten years for an unarmed offense), D.C. Code § 22-404.01 (b) (2001), than assault with significant bodily injury, which, by comparison, is punishable by imprisonment for not more than three years. D.C. Code § 22-404 (a)(2) (2011 Supp.). Because it is a less serious offense than most, if not all, on the list,*fn10 it is entirely possible that the Council decided not to designate assault with significant bodily injury as a crime of violence.*fn11
We therefore hold that assault with significant bodily injury is not a crime of violence. Nevertheless, our ruling will have little impact on appellant. Although he was charged with assault with significant bodily injury while armed, the judgment and commitment order reports that he was sentenced to imprisonment for twenty-four months for "assault with significant bodily injury."*fn12 That sentence, which runs concurrently with other sentences, is well within the statutory maximum penalty for the unarmed offense, and we see no reason to disturb it. The sentence of sixty months' imprisonment for the related count of PFCV also runs concurrently with other sentences. Thus, although we remand with instructions to vacate the conviction and sentence on Count 8 (PFCV), the total length of appellant's sentence will not be changed.*fn13
We reject the remaining arguments raised by appellant.*fn14
This case is remanded with instructions to vacate the
conviction and sentence on Count 8 (PFCV) and to correct certain
clerical errors in the judgment and commitment order.*fn15
In all other respects, the judgment of the Superior Court is