Gilberto LOPEZ-RAMIREZ, Appellant, v. UNITED STATES, Appellee.
No. 16-CM-1219
District of Columbia Court of Appeals.
Decided October 12, 2017
171 A.3d 169
Argued June 27, 2017
| Crime | Elements | Statutory Source |
|---|---|---|
| Second-Degree Child Sexual Abuse | Sexual Contact with a Child Defendant is at least 4 Years Older Than the Child Intent to Abuse, Humiliate, Harass, Degrade, or Arouse or Gratify Sexual Desire | |
| Third-Degree Sexual Abuse | Sexual Contact with Another Person By Using Force Against that Person Intent to Abuse, Humiliate, Harass, Degrade, or Arouse or Gratify Sexual Desire | |
| Fourth-Degree Sexual Abuse | Sexual Contact with Another Person Knows or Has Reason to Know that the Other Person Is Incapable of Appraising the Nature of the Conduct Intent to Abuse, Humiliate, Harass, Degrade, or Arouse or Gratify Sexual Desire | |
| Misdemeanor Sexual Abuse | Sexual Contact with Another Person With Knowledge or Reason to Know that Act is Without the Person‘s Permission Intent to Abuse, Humiliate, Harass, Degrade, or Arouse or Gratify Sexual Desire |
Lauren R. Bates, Assistant United States Attorney, with whom Channing D. Phillips, United States Attorney at the time the brief was filed, and Elizabeth Trosman, Elizabeth H. Danello, and Candice C. Wong, Assistant United States Attorneys, were on the brief, for appellee.
Before Fisher and Beckwith, Associate Judges, and Nebeker, Senior Judge.
Opinion for the court by Associate Judge Fisher.
Dissenting opinion by Associate Judge Beckwith at page 177.
Fisher, Associate Judge
After a bench trial, appellant Gilberto Lopez-Ramirez was convicted of attempted misdemeanor sexual abuse,1 but acquitted of three counts of contempt.2 Appellant argues that he should have received a jury trial because his “total financial exposure” was greater than $4,000 when taking into account assessments under the Victims of Violent Crime Compensation Act (VVCCA). We affirm the decision of the
I. Background
VVCCA assessments are mandatory payments “imposed upon each person convicted of or pleading guilty or nolo contendere to the offense in the Superior Court of the District of Columbia or any other court in which the offense is charged.”
Standing alone, the charge of attempted misdemeanor sexual abuse exposed aрpellant to paying $750: a $500 fine, plus a $250 VVCCA assessment. See
Judge Laura Cordero rejected appellant‘s argument, ruling that a VVCCA assessment “is not a fine.” She cited Gotay v. United States, 805 A.2d 944 (D.C. 2002), in which this court noted that the VVCCA “does not call [these sums] fines; moreover, fines are generally prescribed in the statutes that define particular crimes and establish the penalties for them.” Id. at 948 n.9. The Gotay court decided to adhere to the statutory term “assessments” when referring to VVCCA payments. Id. However, the court in Gotay was not presented with the question we consider here — whether a VVCCA assessment should count as a “fine or penalty” for purposes of determining the statutory right to a jury trial.
Because appellant only faced a maximum payment of $3,500 if VVCCA assessments were not included, Judge Cordero‘s ruling meant that he could not cross the $4,000 threshold established in
We note аs an initial matter that our inquiry focuses on the statutory right to a jury trial conferred in the District of Columbia. Appellant has not asserted that his constitutional right to a jury trial has been violated, and such a claim would fail under Supreme Court precedent. See, e.g., Lewis v. United States, 518 U.S. 322, 323 (1996) (holding “that no jury trial right exists where a defendant is prosecuted for multiple petty offenses“); United States v. Nachtigal, 507 U.S. 1, 4-6 (1993) (holding that a defendant was “not constitutionally entitled to a jury trial” because he was charged with a “petty offense” even though the penalties for the offense included a maximum fine of $5,000). The issue presented is entirely a matter of legislative intent: did the Council of the District of Columbia intend that a VVCCA assessment be treated as a fine or penalty for purposes of applying
A. Standard of Review
Our review of questions of statutory interpretation is de novo. Peterson v. United States, 997 A.2d 682, 683 (D.C. 2010). “We begin by looking first to the plain language of the statute to determine if it is clear and unambiguous.” Id. at 684 (intеrnal quotation marks omitted). We are mindful, however, that “[s]tatutory interpretation is a holistic endeavor[.]” Tippett v. Daly, 10 A.3d 1123, 1127 (D.C. 2010) (en banc) (quoting Washington Gas Light Co. v. Pub. Serv. Comm‘n, 982 A.2d 691, 716 (D.C. 2009)). “When interpreting a statute, the judicial task is to discern, and give effect to, the legislature‘s intent.” In re C.G.H., 75 A.3d 166, 171 (D.C. 2013) (quoting A.R. v. F.C., 33 A.3d 403, 405 (D.C. 2011)). Indeed, “the primary rule” of statutory construction “is to ascertain and give effect to legislative intent and to give legislative words their natural meaning; should effort be made to broaden the meaning of statutory language by mere inference or surmise or speculation, we might well defeat true legislative intent.” Grayson v. AT & T Corp., 15 A.3d 219, 237-38 (D.C. 2011) (en banc) (alterations omitted) (quoting Banks v. United States, 359 A.2d 8, 10 (D.C. 1976)).
Thus, “[t]he words of a statute are a primary index but not the sole index to legislative intent; the words cannot prevail over strong contrary indications in the legislative history.” Id. at 238 (internal quotation marks omitted). “It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” O‘Rourke v. District of Columbia Police & Firefighters’ Ret. & Relief Bd., 46 A.3d 378, 383 (D.C. 2012) (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000)).
B. The Text of the Statutes
We begin by looking at the statutory texts. “Fine” and “penalty” are not defined in
It is not obvious from the text of the VVCCA that the Council intended those assessments to fall within the term “fine or penalty,” as used in 16-705. First, the Council used the word “assessment” in the VVCCA rather than “fine” or “penalty.” The Council also specified that VVCCA assessments were to be imposed “[i]n addition to and separate from punishment imposed,” see
Nonetheless, given that “fine,” “penalty,” and “assessment” can “seem ambiguous in isolation,” we look to legislative history and to “the remainder of the statutory scheme” to discern the legislature‘s intent. Ferguson v. United States, 157 A.3d 1282, 1285-86 (D.C. 2017). An examination of legislative history reveals no evidence that the Council intended VVCCA assessments to affect the meaning of the “fine or penalty” language in
C. The Impact on Other Statutes
Adopting appellant‘s argument would affect much more than the “cumulative fine or penalty” provision invoked by appellant. It would also dramatically alter the application of
Thus, a vast number of misdemeanor offenses currently have a maximum fine of $1,000. Under appellant‘s interpretation of “fine or penalty,” a mandatory VVCCA assessment would be added to the $1,000 maximum fine for all of those offenses, suddenly making them all jury-demandable under
Indeed, adopting appellant‘s position would suggest that the Misdemeanor Streamlining Act has been misapplied since it was enacted. But nothing in the committee report for the 1997 amendments to the VVCCA suggests that the Council intended the result appellant urges, see D.C. Council, Report on Bill 11-657 (Sept. 26, 1996), and we decline to find it by implication. Cf., e.g., Richardson v. United States, 927 A.2d 1137, 1143 (D.C. 2007) (warning that “[r]epeals by implication are not favored” and that “[i]n the absence of any express repeal or amendment, a later statute is presumed to be in accord with the legislative policy embedded in a prior statute so as to allow the prior and later statutes to be construed together” (alterations omitted)).
We have stressed that “the canon disfavoring repeal by implication must be taken seriously“:
Speyer v. Barry, 588 A.2d 1147, 1165 (D.C. 1991) (quoting United States v. Hansen, 772 F.2d 940, 944 (D.C. Cir. 1985)). Consequently, we demand that “the intention of the legislature to repeal ... be clear and manifest.” Id. (emphasis omitted) (quoting Kremer v. Chem. Const. Corp., 456 U.S. 461, 468 (1982)).
We confront a similar situation here. Strictly speaking, appellant is not asserting that any portions of
D. The Legislative History of the Misdemeanor Jury Trial Act of 2002
Perhaps more importantly, the legislative history of the very statute on which appellant relies dispels the notion that the Council intended for VVCCA assessments to be considered fines or penalties for purposes of determining the right to a jury trial.
In that balancing process, the Council rejected arguments by the Public Defender Service for the District of Columbia and the American Civil Liberties Union that defendants charged with multiple offenses should receive a jury trial whenever the maximum cumulative penalty would be more than 180 days. Id. at 4, 7, Attachment E (testimony of Laura E. Hankins, Chief Legislative Counsel, Public Defender Service for the District of Columbia) at 3, 6-7. Superior Court Chief Judge Rufus G. King III expressed the court‘s “concern” with such a provision, noting the “toll” it “would take on juror and judicial resources” given the large increase in the number of jury-demandable cases that would result. Id. at Attachment E (testimony of Chief Judge Rufus G. King III) at 1. The Chief Judge estimated that the provision would create “an additional 300 jury trials per year.” Id. at Attachment E (testimony of Chief Judge King) at 2.
The Council responded to the Superior Court‘s concerns. Finding that the “180
The committee report stressed that these changes ensured “that the legislation will apply to cases representing roughly one to 5% of misdemeanor cases in Superior Court,” which would constitute only “10-50 total cases per year[.]” Id. at 5. Given this limited impact, the Council Committee “believe[d] that the additional resources required by the [Superior] Court and law enforcement agencies will be minimal.” Id.
Appellant‘s interpretation of
Significantly, the Council weighed these issues four years after passage of the most recent amendments to the VVCCA. The Council would presumptively have been aware of the currеnt VVCCA assessment system, yet it still expressed its intention to limit the number of misdemeanor cases that would be tried by a jury, and it nowhere indicated that it viewed VVCCA assessments as affecting that analysis. In fact, the committee report outlined proposed changes to several offenses that would set the maximum penalties at 180 days in prison, and/or a fine of $1,000, “so that the defendant does not have the right to a jury trial in these cases.” Id. at 3-4. Yet, under appellant‘s interpretation of “fine or penalty” in
Indeed, considered in context, appellant‘s argument would suggest that both the Council and the Superior Court have
In sum, the Council never intended what appellant proposes. Whatever the definitions of “fine,” “penalty,” or “assessment” may be in isolation, the legislative history and the larger statutory scheme “make[ ] clear that [the statutory terms] should not be read to extend to the outer limits of [their] definitional possibilities.” Odeniran v. Hanley Wood, LLC, 985 A.2d 421, 426 (D.C. 2009) (internal quotation marks omitted); see also Dolan v. United States Postal Serv., 546 U.S. 481, 486 (2006) (concluding that “context and precedent require[d] a narrower reading” of a statute because “[t]he definition of words in isolation ... is not necessarily controlling in statutory construction“); O‘Rourke, 46 A.3d at 386-87 (rejecting a statutory interpretation that would lead to “incongruous consequences” and was “in tension” with other statutes).
We therefore affirm the decision to deny appellant a jury trial.
E. Remand to Correct Sentence
We remand for the limited purpose of correcting appellant‘s sentence. The trial judge imposed a sentence of 180 days’ incarceration, suspended as to all but thirty days. A sentence of 180 days may be imposed for misdemeanor sexual abuse,
III. Conclusion
We remand with instructions to correct appellant‘s sentence. In all other respects, the judgment оf the Superior Court is hereby
Affirmed.
Gilberto LOPEZ-RAMIREZ, Appellant, v. UNITED STATES, Appellee.
No. 16-CM-1219
District of Columbia Court of Appeals.
Decided October 12, 2017
Beckwith, Associate Judge, dissenting in part:
The majority rejects Gilberto Lopez-Ramirez‘s contention that the Victims of Violent Crime Compensation Act (VVCCA) assessment1 is a “fine or penalty” for the purposes of the jury-trial statute,
I. The VVCCA Assessment Is a “Fine” or “Penalty” Under § 16-705 .
The text of the jury-trial statute,
Because “fine” and “penalty” are not defined in the jury-trial statute, and because they do not seem to be terms of art, this court will typically “accord them their ordinary meaning in common usage.” Hood v. United States, 28 A.3d 553, 559 (D.C. 2011). In common usage, the term “fine” refers to “a sum ... imposed as punishment for a crime.” Webster‘s Third New International Dictionary 852 (2002); see also Black‘s Law Dictionary 750 (10th ed. 2014) (defining “fine” as “[a] pecuniary criminal punishment or civil penalty payable to the public treasury“). The term “penalty” means “the suffering in person, rights, or property which is annexed by law or judicial decision to the commission of a crime or public offense.” Webster‘s Third New International Dictionary 1668; see also Black‘s Law Dictionary 1313 (defining “penalty” as “[p]unishment imposed on a wrongdoer, usu. in the form of imprisonment or fine; esp., a sum of money exacted as punishment“).
Both fines and penalties are ordinarily understood to be forms of punishment. A punishment is “[a] sanction — such as a fine, penalty, confinement, or loss of property, right, or privilege — against assessed a person who has violated the law.” Black‘s
The VVCCA, originally enacted in 1982 and substantially revised in 1996,6 provides for an “assessment”7 to be imposed on defendants “convicted of or pleading guilty or nolo contendere to” various offenses: “$100 for each violation of § 50-2201.05, ... between $50 and $250 for other serious traffic or misdemeanor offenses, and ... between $100 and $5,000 for each felony offense.”
The VVCCA assessment is a “fine” or “penalty” as those terms are commonly understood because it is “imposed as punishment for a crime” or is a burden “annexed by law or judicial decision to the commission of a crime.” Webster‘s Third New International Dictionary 852, 1668. The VVCCA assessment shares the typical characteristics of a punishment. It is necessarily imposed following conviction as part of the sentence — in this case, it was included in the written judgment of Mr. Lopez-Ramirez‘s sentence10 — and it cannot be imposed on a person who has not been convicted of an offense. See
Putting aside that the VVCCA assessment bears many of the standard hallmarks of a fine or penalty (or punishment), and putting aside that we have no reason to think that the terms “fine” and “penalty” as used in the jury-trial statute mean something different from what they mean in ordinary legal discourse, the legislative history of the VVCCA of 1996 — which enacted the current version of the assessment provision,
At the outset, the Judiciary Committee‘s report on the VVCCA of 1996 repeatedly refers to the assessments as “fines.” D.C. Council, Report on Bill 11-657 at 3 (Sept. 26, 1996) (noting that under the VVCCA of 1981, “many judges did not consistently impose or collect the applicable fines needed to fund the” Crime Victims Compensation Program (CVCP) (emphasis added)); id. at 8 (noting the testimony of Professor Judith Bonderman that under the VVCCA of 1981, a “small portion” of the CVCP funds came “from fines assessed by Superior Court judges” (emphasis added)); id. (noting the testimony of Dan Eddy recommending that the Council expand the funding for the CVCP by “including a broader range[ ] of offenses in the class of offenses for which judges can assess victim fines” (emphasis added)); id. at 9 (noting the testimony of Mary Lou Leary, Chief of the Superior Court Division of the U.S. Attorney‘s Office, that “the fines have not been changed since the inception of the [victims’ compensation] program in 1982” (emphasis added)); id. at 11 (noting the testimony of Anne Goodson, stating that the proposed VVCCA of 1996 “will assure the judiciary thаt the fines assessed will be dedicated exclusively to use by the [victims‘] compensation program” (emphasis added)). Although, as the majority notes, many — but not all — of the uses of the word “fine” are in the summaries of witness testimony, ante at 173 n.4, the report‘s consistent use of the term across multiple summaries in-
Other indications that the D.C. Council viewed the VVCCA assessment as a fine include a resolution the Council passed during the period in which the VVCCA of 1996 was before the Judiciary Committee. That resolution — entitled “Sense of the Council on the Reestablishment of the District of Columbia Crime Victims Compensation Program of 1996,” Resolution 11-337, 43 D.C. Reg. 3225 (June 4, 1996) — referred to the VVCCA assessments as “fines” and stated that “[i]n order to adequately fund the CVCP, the Council urges the Superior Court to diligently levy the maximum allowable fines on convicted criminals as required by
II. The Presumed Purpose of the Misdemeanor Streamlining Act Cannot Override the Clear Language of the Jury-Trial Statute and VVCCA.
My colleagues in the majority will not give effect to the ordinary meaning of the language in the jury-trial statute and the VVCCA assessment provision becausе, in their view, doing so would lead to a result in stark contradiction with the intent of the Misdemeanor Streamlining Act. Ante at 174. There is little doubt that the purpose of the Misdemeanor Streamlining Act was to render a large number of misdemeanor offenses non-jury-demandable, and that when the D.C. Council enacted the Misdemeanor Jury Trial Act of 2002, it did not envision that its amendment to the jury-trial statute would significantly increase the number of jury-demandable cases.13 Ante at 173-74, 175-76. It is also true, as the majority states, that to fully give effect to the D.C. Council‘s intent in enacting the Misdemeanor Streamlining Act (and its intent that the Misdemeanor Jury Trial Act not significantly expand the number of cases tried by juries), the court would have to reject Mr. Lopez-Ramirez‘s interpretation of the jury-trial statute and the VVCCA assessment provision and deviate from the plain language of those statutеs.
Put another way, the statutes and legislative acts at issue in this case reflect mutually incompatible legislative goals or purposes. That leaves two choices for resolving the inconsistency. We can give effect to the purpose of the Misdemeanor Streamlining Act — but contravene the legislature‘s intent that defendants facing fines above a certain threshold receive a jury trial — by pretending that the VVCCA assessment is not a fine or penalty. Or we can give effect to the legislature‘s intent that defendants facing fines above a certain threshold receive a jury trial — but undermine the purpose of the Misdemeanor Streamlining Act — by accepting that the VVCCA assessment fits the criteria of a fine or penalty.14 At least the latter option is consistent with the ordinary meaning of the text of the relevant statutes.15
III. There Is No Reason To Believe That the D.C. Council Would Favor the Majority‘s Interpretation.
The majority‘s analysis relies on the assumption that the D.C. Council, in enacting the various amendments to the jury-trial statute (such as the Misdemeanor Jury Trial Act of 2002), the VVCCA (of 1981 and of 1996), and the Misdemeanor Streamlining Act (in 1994), was fully aware of the existence of other pertinent enactments, that it thought through completely how they would interact with each other, and that this court can divine how the Council envisioned the enactments interacting with each other. See, e.g., ante at 173 (contending that Mr. Lopez-Ramirez‘s interpretation would “disrupt a statutory scheme that the Council has carefully constructed over decades“); ante at 173 (stating that the Council that passed the Misdemeanor Jury Trial Act of 2002 “would presumptively have been aware of the current VVCCA assessment system ...“); cf.
It is not, moreover, the job of this court to resolve the conflict between the purpоse of the Misdemeanor Streamlining Act and the text and purpose of the jury-trial statute. Cf. Antonin Scalia & Brian A. Garner, Reading Law: The Interpretation of Legal Texts 237-38 (2012) (noting that the absurdity doctrine “does not include substantive errors arising from a drafter‘s failure to appreciate the effect of certain provisions“). Indeed, if the D.C. Council today had to decide how to resolve the apparent inconsistency between the purpose of the Misdemeanor Streamlining Act and the jury-trial statute, the Council might take any number of approaches. It might adopt the majority‘s interpretation and indicate that the VVCCA assessment does not count as a “fine” or “penalty” for the purpose of the jury-trial statute. Or it might conclude, alternatively, that reducing the number of misdemeanor jury trials is no longer a priority and go on to adopt Mr. Lopez-Ramirez‘s proposed interpretation. It might also solve the conflict by decreasing the fines or VVCCA assessments, pushing offenses back below the jury-trial threshold. This court cannot know. The majority, by deviating from the clear language of the jury-trial statute and the VVCCA assessment provision based on “mere inference or surmise or speculation” about what the Council wanted, “might well [have] defeat[ed] true legislative intent.” Grayson, 15 A.3d at 237-38 (brackets omitted). I respectfully dissent.
IN RE: Kimberly L. MARSHALL, Respondent.
No. 17-BG-695
District of Columbia Court of Appeals.
October 12, 2017
An Administratively Suspended Member of the Bar of the District of Columbia Court of Appeals, Bar Registration No. 460886
DDN: 125-15
BEFORE: Thompson, Associate Judge, and Farrell and Reid, Senior Judges.
ORDER
PER CURIAM
On consideration of the certified consent order from the state of Virginia that imposed an indefinite impairment suspension, this court‘s July 21, 2017, order suspend-