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Ferguson v. United States

Court of Appeals of Columbia District

April 13, 2017

Malik Ferguson, Appellant,
v.
United States, Appellee.

          Argued October 13, 2016

         Appeal from the Superior Court of the District of Columbia (DVM-1602-14) (Hon. Lynn Leibovitz, Trial Judge)

          Christine Pembroke for appellant.

          Kristina Wolf, Assistant United States Attorney, for appellee. Channing D. Phillips, United States Attorney, and Elizabeth Trosman, Chrisellen R. Kolb, John Timmer, John P. Mannarino, Bryan H. Han, and Ann K.H. Simon, Assistant United States Attorneys, were on the briefs, for appellee.

          Before Blackburne-Rigsby, Chief Judge, [*] and McLeese, Associate Judge, and Reid, Senior Judge.

          Reid, Senior Judge

         Appellant, Malik Ferguson, challenges the judgment of the trial court denying his motion to set aside both of his 2014 misdemeanor convictions for attempted threats.[1] He claims that the trial court improperly denied his motion under the Youth Rehabilitation Act ("YRA"), D.C. Code § 24-901 et seq. (2012 Repl.). The Superior Court determined that only the United States Parole Commission ("USPC") has jurisdiction to set aside the conviction. For the reasons set forth below, we hold that the Superior Court has jurisdiction to decide Mr. Ferguson's motion, because the USPC does not have sole authority to grant or deny a discretionary set aside of the conviction of a youth offender who commits a misdemeanor. The Superior Court has jurisdiction in this case because Mr. Ferguson initially was placed on probation after the execution of his sentence was suspended; he served no time in a federal prison on his misdemeanor convictions following the revocation of his probation. Therefore, we vacate the trial court's jurisdictional order and remand this case for further proceedings consistent with this opinion.

         FACTUAL SUMMARY

         The record reveals that in early September 2014, the trial court sentenced Mr. Ferguson under the YRA to thirty days in jail on each of his 2014 convictions. The court suspended execution of both sentences and placed Mr. Ferguson on supervised probation for twelve months. However, in early January 2015, the Community Supervision Services ("CSS") of the Court Services and Offender Supervision Agency ("CSOSA") informed the trial court that Mr. Ferguson had violated the terms and conditions of his probation. CSS "request[ed] a show cause hearing to recommend Mr. Ferguson's probation be revoked."

         Mr. Ferguson was not present at the time the show cause hearing began on January 30, 2015. CSOSA's representative advised the trial court that "Mr. Ferguson has continued his noncompliance with supervision, " he "has never tested positive for an illegal substance[, but] he has failed to report to drug testing on seven separate occasions, " and he has not complied with mental health treatment. CSOSA recommended revocation of Mr. Ferguson's probation. The trial court indicated that if Mr. Ferguson did not appear by 10:30 a.m., a $500 bench warrant would be issued. Mr. Ferguson's brief in this case indicates that later on January 30, 2015, Mr. Ferguson appeared and the trial court "continued the show cause matter to March 20, 2015[, ] so that Mr. Ferguson could come into compliance with the terms of his probation."

         On February 2, 2015, following an arrest on new misdemeanor charges, Mr. Ferguson was committed to the D.C. Jail pending disposition. At the probation show cause hearing on March 20, 2015, the trial court indicated that Mr. Ferguson had been arrested in a domestic violence matter. Consequently, the court revoked his probation, and sentenced him under the YRA to thirty days on each of his 2014 convictions; the sentences were to run concurrently. The trial judge expressed its "hope" that Mr. Ferguson could "benefit from the services provided under [the YRA]." In addition, Mr. Ferguson's counsel asked for time served, apparently because by that time he had already been in the D.C. Jail for thirty days. The trial court responded that "[h]e will get credit for time served, by law." Thereafter, on March 27, 2015, CSOSA's notice of completion of probation was filed in the trial court; the notice indicated Mr. Ferguson's unsatisfactory adjustment to supervision and recommended that his "probation expire without the benefits described in D.C. Code, Title 24, Section 906 (e)."

         Subsequently, on April 21, 2015, Mr. Ferguson lodged a motion to set aside his conviction, stating that the new case against him had been dismissed on April 3, 2015. In response, the trial court entered an order on May 5, 2015, denying Mr. Ferguson's motion and declaring that, "Under D.C. Code § 24-906 (b), if a defendant has served his sentence under the YRA before unconditional discharge, it is the [USPC], and not the court, that has jurisdiction to set aside the conviction." Mr. Ferguson noticed a timely appeal.

         PARTIES' SUPPLEMENTAL BRIEFS

         Prior to hearing oral argument, this court issued an order requesting the government to submit a supplemental brief "addressing whether the [USPC] has authority under D.C. Code § 24-906 (b) (2012 Repl.) to grant a post-sentence set aside with respect to a misdemeanor conviction." The order indicated that Mr. Ferguson could file a ...


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