Jamal Randell SOLOMON, Appellant, v. UNITED STATES, Appellee.
No. 14-CF-87.
District of Columbia Court of Appeals.
Submitted March 31, 2015. Decided July 23, 2015.
120 A.3d 618
The CRB‘s decision is affirmed in part and reversed in part, and the matter is remanded to the CRB to direct the ALJ to determine whether the additional proposed treatments were reasonable and necessary.
So ordered.
Ronald C. Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth Trosman, Laura Coates, and Stratton C. Strand, Assistant United
Before FISHER and BLACKBURNE-RIGSBY, Associate Judges, and KING, Senior Judge.
FISHER, Associate Judge:
The District‘s unlawful possession of a firearm (“UPF“) statute prohibits any person who has been convicted of a crime punishable by imprisonment for a term exceeding one year from possessing a firearm.
I. Factual and Procedural History
On January 3, 2008, Solomon pled guilty to one count of UUV. Under the Youth Act, the trial court sentenced him to a term of imprisonment but suspended execution of that sentence, placing him on supervised probation. After finding that Solomon had successfully completed the conditions of his probation, on July 16, 2009, the court ordered that he “be unconditionally discharged from the imposed sentence” and set aside his conviction.
In 2011, the Council of the District of Columbia amended the Youth Act, expressly permitting a set-aside conviction to serve as a predicate crime for UPF.
II. The Youth Act Amendment
Solomon contends that the 2011 amendment to the Youth Act retroactively: (1) redefined his past “legally innocent” conduct—his set aside UUV conviction—as an element of a crime, (2) reinstated his exposure to punishment for his UUV conviction, and (3) transformed the UUV conviction from an event with no evidentiary value to proof of an element of a crime. “We review this constitutional law question de novo.” Jones v. United States, 719 A.2d 92, 93 (D.C.1998) (referring to claim of ex post facto violation).
A. The Ex Post Facto Clause
“[A] law violative of the ex post facto clause may be identified by two critical elements; it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.” Dean v. United States, 938 A.2d 751, 770 (D.C.2007) (citation omitted). However, “every retrospective law is not an ex post facto law,” Calder v. Bull, 3 U.S. 386, 391, 3 Dall. 386, 1 L.Ed. 648 (1798) (emphasis added), and “[n]ot all changes in law which are disadvantageous to a defendant violate
“Ex post facto law” is a term of art limited to the following four categories of laws: “1st. Every law that makes an action, done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2nd. Every law that aggravates a crime, or makes it greater than it was, when committed. 3rd. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.” Calder, 3 U.S. at 390; see Collins v. Youngblood, 497 U.S. 37, 41-52, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990) (the four types of laws identified in Calder are an exhaustive list of ex post facto laws).
B. The Amendment Is Prospective
The Youth Act amendment applies to offenders who committed their predicate crimes both prior to and after its enactment. However, the former youth offender is not exposed to criminal liability unless he possesses a firearm after the effective date of the amendment. The amendment therefore operates prospectively, giving youth offenders whose convictions were set aside fair warning of the UPF statute‘s expanded proscription. See Carmell v. Texas, 529 U.S. 513, 566, 120 S.Ct. 1620, 146 L.Ed.2d 577 (2000) (“The Ex Post Facto Clause ... serves to assure that legislative Acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed.” (citation omitted)). In this case, Solomon received constructive notice that he was not to possess a firearm as of June 3, 2011, the amendment‘s effective date. In spite of this notice, he chose to possess a firearm on January 1, 2013, and was thereafter prosecuted for his post-amendment conduct.
Notwithstanding this fair warning, Solomon contends that the setting aside of his UUV conviction constituted official assurance that his prior conviction was “forgiven” and therefore could not be used against him in the future to prove an element of UPF. We disagree. The set-aside did not in any sense “forgive” his past conduct. It was not a pardon. Moreover, at the time he pled guilty to UUV, Solomon knew or should have known that a set-aside conviction could be used to his detriment for a variety of purposes, including to determine whether he had committed a second or subsequent offense for purposes of imposing a recidivist penalty, to determine the appropriate sentence for any subsequent crime, and for impeachment purposes. See
When his conviction was set aside, Solomon had no legitimate, or enforceable, expectation that the Council, in its legislative discretion, would not change the law in a way that restricted his future conduct. See Cases v. United States, 131 F.2d 916, 921 (1st Cir.1942) (legislature may, without offending the prohibition against ex post facto laws, restrict an individual‘s right to engage in future activity because of his past conduct, so long as the past conduct can reasonably be said to indicate unfitness to engage in the future activity); Jordan v. State, 56 S.W.3d 326, 332 (Tex.App.2001) (legislature did not violate the Ex
Regardless of whether Solomon‘s prior conviction was “forgiven” for some purposes,1 the Council retained the right to enact a new forward-looking law establishing a new crime or revising an existing one. See United States v. Brady, 26 F.3d 282, 291 (2d Cir.1994) (no ex post facto violation where felon possessed a firearm in contravention of a felon-in-possession statute, even though his felony conviction preceded enactment of the statute); State v. Banta, 15 Conn.App. 161, 544 A.2d 1226, 1238 (1988) (felon-in-possession statute was not an ex post facto law; although the defendant‘s prior conviction preceded the enactment of the statute, the criminalized conduct—his possession of a pistol—did not).
C. The Amendment Does Not Fit Within the Calder Categories
Even assuming that the Youth Act amendment operates retroactively by enlarging the uses that may be made of a set-aside conviction, Solomon has nevertheless failed to demonstrate that it disadvantages him in a manner prohibited by the Calder categories. It did not “make[] an action, done before the passing of the law, and which was innocent when done, criminal.” Calder, 3 U.S. at 390. Solomon possessed the firearm after the 2011 amendment and, although he committed and was convicted of UUV before the amendment, his unauthorized use of a vehicle was not “innocent when done.” See
Nor does the amendment “aggravate[] a crime, or make[] it greater than it was, when committed,” or “inflict[] a greater punishment, than the law annexed to the crime, when committed.” Calder, 3 U.S. at 390. In arguing to the contrary, appellant mistakenly asserts that
Lastly, because the Youth Act amendment preceded Solomon‘s possession of a
Because the 2011 amendment to the Youth Act neither operates retroactively nor otherwise fits within the Calder categories, applying it to appellant did not violate the Ex Post Facto Clause. The trial court, therefore, properly denied Solomon‘s motion to dismiss the UPF charge.
III. Conclusion
The judgment of the Superior Court is Affirmed.
FISHER, Associate Judge
EXPEDIA, INC., et al., Appellants/Cross-Appellees, v. DISTRICT OF COLUMBIA, Appellee/Cross-Appellant.
Nos. 14-CV-308, 14-CV-309.
District of Columbia Court of Appeals.
Argued Sept. 30, 2014. Decided July 23, 2015.