Appeal from the Superior Court of the District of Columbia (CMD-10417-10) (Hon. J. Michael Ryan, Trial Judge) (Hon. Anthony Epstein, Motions Judge)
Before WASHINGTON, Chief Judge, THOMPSON, Associate Judge, and FARRELL, Senior Judge.
FARRELL, Senior Judge:A jury found appellant guilty of distribution of marijuana and possession of marijuana with intent to distribute it (PWID). D.C. Code § 48-904.01 (a)(2)(B) (2001). According to evidence credited by the jury, police observed appellant and his partner sell a ziplock bag of marijuana to a customer on the street. The police then approached the pair and, when they fled, pursued them into a nearby apartment where the officers recovered additional bags of marijuana in plain view from a couch and money -- apparent drug sale proceeds -- from under a bed mattress, having obtained the tenant‟s permission to search. At sentencing the trial judge, after finding that appellant had a prior conviction for PWID, sentenced him to a suspended term of twelve months‟ imprisonment for each of the twin offenses, to run concurrently.
We affirm the convictions, and publish this opinion mainly to reject appellant‟s argument that observing a sale of a small amount of marijuana -- potentially a "misdemeanor" -- does not justify entry of a dwelling by police otherwise in lawful hot pursuit to arrest the seller.
Appellant‟s first argument on appeal is that under Apprendi v. New Jersey, 530 U.S. 466 (2000), the jury, not the judge, should have been allowed to decide whether he had the prior PWID conviction resulting in his felony sentences.*fn1
Apprendi itself and our decision in Eady v. United States, 44 A.3d 257 (D.C. 2012), defeat this argument.
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." 530 U.S. at 490 (emphasis added). In so holding, the Court "treat[ed] . . . as a narrow exception to the general rule [requiring jury submission]," id., its prior conclusion in Almendarez-Torres v. United States, 523 U.S. 224 (1998), that a prior conviction (there for an "aggravated felony" under 8 U.S.C. § 1326) is not an element of the charged offense but rather a "sentencing factor" permitting the judge to impose greater punishment after conviction for the offense charged. 523 U.S. at 234-35. In Eady, supra, we applied the Apprendi exception to hold that the trial court had erred prejudicially in concluding that Apprendi required him to submit to the jury the issue of whether the defendant had a prior felony or firearms conviction under D.C. Code § 22-4504 (a)(2) (2001), which allows enhanced punishment of a defendant with that conviction who commits the offense of carrying a pistol without a license. See 44 A.3d at 261.
Appellant makes no serious effort to distinguish Eady, and tries to avoid Apprendi‟s special treatment of prior convictions by asserting that "the existence of the prior [conviction] is an element of the offense of felony distribution of a controlled substance and PWID" (Br. for App. at 33; emphasis added). But he points to nothing in the language of § 48-904.01 (a)(2)(B) implying that a prior conviction is an element of those crimes.*fn2 Moreover, Apprendi saw no relevance to the jury-submission issue of whether something was an "element" or a "sentencing factor," 530 U.S. at 494, with the single exception, dispositive here, of "the fact of a prior conviction." Id. at 490. Appellant is thus left to argue that Apprendi effectively overruled the Court‟s prior decision in Almendarez-Torres, something the Court plainly did not say it was doing. See 530 U.S. at 489-90.*fn3
Nor, in the years since Apprendi, has the Court implied any retreat from the sui generis treatment of the fact of a prior conviction. See, e.g., Southern Union Co. v. United States, 132 S. Ct. 2344, 2348 (2012); Shepard v. United States, 544 U.S. 13, 24 (2005); Schriro v. Summerlin, 542 U.S. 348, 350 (2004).
Appellant next argues that a presumption of prosecutorial vindictiveness arose when, on the basis of his past drug conviction, the government obtained his indictment for distribution and PWID marijuana after having charged him first with misdemeanor distribution. The prosecutor‟s invidious motive, he asserts, stemmed from his refusal to plead guilty in this case and to subsequent charges that arose following his re-arrest while on release, as well as from his refusal to assist the government in prosecuting, contemporaneously, a large-scale drug conspiracy. These allegations fall well short of the strict standard for identifying presumptive vindictiveness by the government in the pretrial setting.
At that stage of criminal proceedings, the Supreme Court has said, "the prosecutor‟s assessment of the proper extent of prosecution may not have crystallized." United States v. Goodwin, 457 U.S. 368, 381 (1982). *fn4 And, given normal practice and the expectations of the parties before trial, it is "unrealistic to assume that a prosecutor‟s probable response to . . . [defense] motions [invoking procedural rights] is to seek to penalize and to deter." Id. Appellant‟s insistence on trial and unwillingness (as he alleges) to cooperate as part of a deal for reduced charges were customary incidents "of the adversary process," id., and insufficient to generate the presumption he urges. They differ qualitatively from, for example, a prosecutor‟s leveling of greater charges in putative reaction to a civil suit the defendant has filed against the police, see United States v. Mahdi, 777 A.2d 814 (D.C. 2001); and bear no resemblance to Simms v. United States, 41 A.3d 482 (D.C. 2012), where the majority concluded that "an accumulation of circumstances," id. at 491 -- the government‟s bringing new charges after (a) it had announced ready for trial, (b) the defendant then exercised his right to subpoena a witness, and (c) the court ordered a last-minute continuance for that purpose -- all combined to ...