Malik FERGUSON, Appellant, v. UNITED STATES, Appellee.
No. 15-CO-581
District of Columbia Court of Appeals.
Argued October 13, 2016 Decided April 13, 2017
157 A.3d 1282
In sum, Abbott purported to rely on prior cases that addressed this issue, but it lost sight of their holdings that the decision to terminate was the necessary first event. See Abbott, CRB No. 13-130, 2014 WL 8843356, at *2. That departure was critical for purposes of this case because the CRB followed the holding of Abbott without considering whether the NOI could be the decision to terminate consistently with the governing statutory scheme.
The District suggests alternatively that the decision in this case evolved from and flow[s] logically from those in Rice, Dixon-Cherry, and Abbott. It urges us to treat the point at which the case began or originated as the necessary first event. The Notice of Intent fits neatly within this construct, but this is a different test than the one adopted by the CRB in Rice and Dixon-Cherry. We are not willing to assume that the CRB intended to alter its test without a clear explanation that it was doing so. See Springer v. District of Columbia Dep’t of Emp’t Servs., 743 A.2d 1213, 1221 (D.C. 1999) ([W]hen an agency departs from its prior practice or rule, it must supply a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored. (internal quotation marks omitted)).
III. Conclusion
We therefore hold that the CRB’s order cannot stand because it is inconsistent with
So ordered.
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.
Appellant, Malik Ferguson, challenges the judgment of the trial court denying his motion to set aside both of his misdemeanor convictions for attempted threats.1 He claims that the trial court improperly denied his motion under the Youth Rehabilitation Act (YRA),
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
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
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
The government essentially argues that
In his reply to the government’s supplemental brief, Mr. Ferguson takes issue with the government’s position that the USPC has jurisdiction over youth misdemeanor offenders, arguing that
ANALYSIS
Standard of Review
This court reviews questions of statutory interpretation de novo. Holloway v. United States, 951 A.2d 59, 60 (D.C. 2008). [I]nterpreting a statute or a regulation is a holistic endeavor. W.H. v. D.W., 78 A.3d 327, 337 (D.C. 2013) (quoting Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 528 (1994)). That is, [a] provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme—because the same terminology is used elsewhere in a context that makes its meaning clear, or because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law. United Sav. Ass’n of Texas v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371 (1988) (citations omitted). Thus, we do not read statutory
We follow the canon that [t]he primary and general rule of statutory construction is that the intent of the lawmaker is to be found in the language that he [or she] has used. Clark Constr. Grp., Inc. v. District of Columbia Dep’t of Emp’t Servs., 123 A.3d 199, 202-03 (D.C. 2015) (internal quotation marks omitted). We interpret the words used by the legislature [or the rulemaking agency] according to their ordinary sense and with the meaning commonly attributed to them. W.H., supra, 78 A.3d at 337 (internal quotation marks omitted). [I]f the meaning is clear from the face of the statute [or regulation], we must give effect to that plain meaning. Stevens v. District of Columbia Dep’t of Health, 150 A.3d 307, 315 (D.C. 2016) (internal quotation marks and citation omitted). However, in appropriate cases, we also consult the legislative history of a statute, W.H., supra, 78 A.3d at 337, and [a] court may refuse to adhere strictly to the plain wording of a statute in order to effectuate the legislative purpose as determined by a reading of the legislative history or by an examination of the statute as a whole, Peoples Drug Stores, Inc. v. District of Columbia, 470 A.2d 751, 754 (D.C. 1983) (en banc) (internal quotation marks and citation omitted).
The Statutory and Regulatory Framework
Chapter 9 of Title 24 of the D.C. Code applies to youth offenders who are less than 22 years old [and who have been] convicted of a crime other than murder, first degree murder that constitutes an act of terrorism, and second degree murder that constitutes an act of terrorism.
If a committed youth offender is unconditionally discharged before the expiration of the sentence imposed, the youth offender’s conviction shall be automatically set aside.
[w]here a youth offender has been placed on probation by the court, the court may, in its discretion, uncondition-
ally discharge the youth offender from probation before the end of the maximum period of probation previously fixed by the court. The discharge shall automatically set aside the conviction. If the sentence of a youth offender who has been placed on probation by the court expires before unconditional discharge, the court may, in its discretion, set aside the conviction ....
The USPC rule found at
Discussion
When we examine the statutory and regulatory framework set forth above as a whole, it is clear that Chapter 9 of Title 24 of the D.C. Code assigns statutory duties over youth offenders to both the USPC and the Superior Court. These duties depend upon statutory categories into which youth offenders fall with respect to (a) the crimes charged—felonies or misdemeanors—and (b) disposition by the court—commitment or probation. In
The felony/misdemeanor distinction, along with the commitment/probation distinction, is carried forward into the authority to set aside a youth offender’s conviction under
Since Mr. Ferguson did not commit a felony, he does not fall under § 24-906 (c). Rather, he falls under § 24-906 (e) because he was charged with misdemeanors and placed on probation when the execution of his sentence was suspended. However, he was not entitled to an automatic set aside because he was not unconditionally discharged before the end of the maximum period of probation [one year] previously fixed by the court. Instead, under § 24-906 (e), the question presented by this case is whether the Superior Court has jurisdiction to determine if Mr. Ferguson’s motion for a (discretionary) set aside of his misdemeanor convictions should be granted or denied. We view that question in the factual context of this case, that is, where Mr. Ferguson was initially placed on probation, his probation was revoked, he was resentenced to serve a term of thirty days in jail on each of his two misdemeanor charges, and he apparently had already served the thirty days in the D.C. Jail by the time of resentence.
However, the government insists that the USPC has the authority to determine whether Mr. Ferguson’s convictions should be set aside. In reaching this conclusion, the government first focuses on
Thus, the government ignores not only the fact that interpreting a statute or a regulation is a holistic endeavor, W.H., supra, 78 A.3d at 337, requiring that the entirety of § 24-906, which clearly distinguishes between youthful felons and youthful misdemeanants, be considered, but also the principle that if divers statutes relate to the same thing, they ought to be taken into consideration. Abadie, supra, 843 A.2d at 742.
In considering USPC’s implementing regulations found in 28 CFR Part 2, the
Based upon our examination of the above referenced statutory and regulatory framework according to the canons of statutory interpretation, we conclude that (1) neither
Our conclusion is consistent with Chapter 9 of Title 24 of the D.C. Code because Chapter 9 generally and specifically (a) distinguishes between youth offenders who commit felonies and those who commit misdemeanors, (b) distinguishes between youth offenders who are committed (incarcerated) and those who are placed on probation, and (c) assigns authority over committed (incarcerated) youthful offenders to the USPC and authority over youthful misdemeanants placed on probation to the Superior Court. Our conclusion also is consistent with 28 CFR Part 2 which in § 2.70 grants the USPC sole authority over parole and conditions of release of youth offenders convicted of felonies, but does not similarly assign sole authority over those convicted of misdemeanors to the USPC. Nor do the words of
Accordingly, for the foregoing reasons, we vacate the trial court’s jurisdictional order and remand this case to the trial court so that it may exercise its discretionary authority to determine whether Mr. Ferguson’s motion to set aside his convictions should be granted or denied.
So ordered.