*2 KERN, NEBEKER FER- REN, Judges.
PER CURIAM: jury of armed rob- bery and this court affirmed the conviction Opinion Judgment in a Memorandum May Appellant issued on pro the trial court a se motion to years vacate his sentence of 10 to 30 on the ground had enhanced affording appellant the sentence without procedural rights guaranteed by D.C.Code may before a sentence be enhanced.1 court, citing to Morris v. Unit- ed denied Sentence, the Renewed Motion Vacate pointing out:
Defendant was convicted of armed rob- §§ (D.C.Code 22-2901, -3202). bery Sec- 3202(a)(1)provides for a sentence up imprisonment “which to life imprisonment” if a “is con- having for the first time of so victed committed a crime of violence.” Sentence, alleging Subsequently, appointed repre- counsеl was Vacate the same contention appellant’s pro and filed a Renewed Motion to se motion. sent Here, defendant life minimum faced authorized for sentence. Accordingly, defendant could charged, robbery, offense not have received an “enhanced” sen- was two and commented when reason of his conviction. ing sentence “The hаs no alter- that: Court defendant received a sentence of impose meaningful native but to *3 thirty ten years. That sentence is well of incarceration.” within the authorized persuaded by appellant’s We are not regard prior without to a conviction. As argument that the trial enhanced such, obligation the Court had no to con- imposed minimum term of the sentencе he duct a inquiry as defendant in the instant case. nowhere contends. sentencing proceeding did the state States, supra Morris v. United he minimum sentence of 10 expressly this court concludеd that imposed predicated upon appellant’s was procedures 23-lll(b) are ... “[t]he prior Indeed, robbery conviction. the court mandatory only ... but enhanced ‘before mаde no reference at all to the so-called penalties may be invoked.’ Where the ... papers” “recividist filed here substantive offense for which the defend government, stating thе Information ant is convicted carries a life sen prior had been convicted of a the court impose any robbery. ‘greater’ sentence ‘in lieu of’ the sentence authorized, otherwise because there is we note that Fields nothing greater than a life sentence ....” United Therefore, support Morris upon by appellant, sentencing relied court’s dеnial of motion. judge specifically stated that he was mandatory a minimum sentence. However, appellant responds by pointing There, such we were bound conclude Morris, to this сourt’s footnote comment in improper enhanced sentence was without supra at 378 n. 3 that “an enhanced sen- giving requisite first notice under Sec- possible, tence would be where 23-lll(b) to the defendant. repeat prescribes offender statute [un- like the enhancement statute Morris did] Also, appel- the Information stated that mandatory a minimum sentence that рrior robbery lant’s oc- conviction was higher than the minimum authorized for curring per- in Maryland but the statute the substantive offense.” mitting of a minimum enhancement term upon prior conviction of
Aрpellant, support of his contention violence, viz., 3202(a)(2), a crime of Section that the trial court enhanced the minimum expressly provides prior crime sentence, points tеrm of his to certain facts committed in the District must have been the instant case: prior stating Columbia. pretrial filed a Information of crime must have been a crime violence robbery2 had committed a States, 396 urged while armed. Fields v. United during sentencing the court allo- (D.C.1979). the Infor- cution a minimum sentence here;3 and, citing robbery to a committed the trial mation nullity judge imposed a on its face a minimum sentence ten prosecu- Appellant points specifically The Information recited that probation previously July "We would been convicted on 1970 оf tor’s comment: think the that, outrage. robbery Montgomery County, Maryland, complete addition to be a But in 3202(a)(2) providing its dis- the court doesn’t even have that within cited to Section for man- defendant, Mandatory papers filed in datory cretion. have been five where case; and the of a crime of violence in the it's a second crime of violence conviсted District, minimum the Court could sentence Mr. is convicted of a second crime of vio- absolute Brown to is a term of five to fifteen.” lence while armed. type of indulge pre- therefоre we decline to crime “is one of the most terroristic sumption appellant urges that the sentenc- things that can occur to an individual .... upon acted in reliance an Infor- sentencing judge’s comments mation that was invalid on its face. sentencing appellant to a term of 10 to 30 We note also that the minimum sentence judge’s in our con- years reflect impоsed by sentencing judge, years, appel- of the crime cern about the nature exactly one-third of the maximum sen- committed, lant his record and the years, tence—30 which accоrds with the community, need of for the rath- proviso sentencing generally. statutory application er than the mechanical § 24-203(a) (1981). Thus, D.C.Code mandatory minimum sentence without of a imposеd fact a minimum any the exercise of discretion.4 years (being greater sentence of 10 than find from of the record We our review two-year minimum authorized *4 “en- appellant’s sentence was not not, robbery) of armed first conviction obliga- court had no hanced” and thus the itself, and of evidence that the court was perform inquiry tion to as enhancing sen- the minimum term of its Furthermore, the appellant contends. sen- predicated upon prior robbery the thirty years tence of ten to was well within in Maryland. conviction a first the authorized for that he had tо the comment arm- conviction of a crime of violence while impose meaning- “no alternative” but to “a §ed, 22-3202(a)(l). incarceration”, ful sentence of denying appel- The trial court’s order in the context of all the comment viewed hereby to sentence is representations judge made to the trial lant’s motion vacate well as the court’s othеr comments at sen- affirmed.5 tencing, persuaded that we are not ordered. So in im- believed he lacked discretion posing a minimum term. FERREN, Judge, dissenting: supports quite record a different cоnclu- sion. trial, stage in order to set the enhancing appellant’s sentence under D.C. specifically stated the trial 22-3202(a)(2) prosecutor Code to the sentence was to be Maryland reflecting a filed an Information given community for “the of the conviction, conviction. That to others and it’s not as deterrence of an as the basis could not have served рunishment you.” to the statute. Af- enhanced sentence under “overwhelming emphasized court evi- convicted, prosecutor ter guilt plus dence of in this case ... during “urged the court sen- errоneously Fi- [appellant’s] other violations of law.” mini- nally, type tencing allocution that a the court stated that just prosecutor argued trial and so defense counsel was at аllocution not to record, information, point- obliged but also had a address such to cooperate Second, with the ed to failure to is noth- invalid on its face. there addition, gоvernment. ar- ing defense before us to show that in the record give gued to the court that it must a "substantial the inaccurate as- counsel "failed to correct period in this of incarсeration ... in order previous- sumption the defendant had been particular protect case ... to the citizens robbery.” ly Maryland]: [in being gun- held District of Columbia from at (Brief 12.) refers to this The record point.” "robbery” both as a conviction conviction robbery.” Under conviction for "armed and a reject appellant’s contention that his trial 5. We circumstances, аppellant has failed these attorney at sen- rendered ineffective assistance assist- on this record ineffective demonstrate tencing. we are satisfied that the sentenc- by failure to chal- ance counsel because of his impose did not an enhanced sentence robbery.” lenge the use of the term “armed response prosecution’s infоrmation required mum sentence was here.” enhance the sentence reference to the Ante n. 2. The trial at 163 & said it conviction, say it so. can On “ impose had ‘no alternative but to a mean- hand, improperly other if the court take did ingful incarceration.’ Ante account, it can into revise conviction accordingly. resentenc- the sentence Such gоvern- possibly prejudice analysis Although majority may be ment, plausible, bootstrapping. also lift any possible smacks of and it will cloud on inapplicable The information was but not in fairnеss face.” at 163. In its Ante “invalid on therefore, I Respectfully, dissent. prosecutor’s representa- of the erroneous tion, possibility we cannot discount the busy failed to note inapplicability.
its doubt, all
To eliminate and thus to assure sentencing process, integrity resentencing.
would remand for If the tri-
al court did believe it