October 13, 2016
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.
Blackburne-Rigsby, Chief Judge, [*] and McLeese, Associate
Judge, and Reid, Senior Judge.
Malik Ferguson, challenges the judgment of the trial court
denying his motion to set aside both of his 2014 misdemeanor
convictions for attempted threats. 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.
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."
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."
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
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.
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 ...