Speaks v. United StatesSpeaks v. United States
On May 4, 2005, a grand jury indicted appellant on one count of armed carjacking (knife) (
A jury trial began before the Honorable Hiram E. Puig-Lugo on June 7, 2005, and concluded in part on June 20, 2005, when the jury returned verdicts of guilty on the three second-degree cruelty to children counts. The following day, the jury acquitted appellant of armed carjacking, armed kidnapping and CDW, and announced it was unable to reach verdicts on ADW and the lesser included offenses of unarmed carjacking and unarmed kidnapping. Judge Puig-Lugo declared a mistrial as to those offenses. On July 6, 2005, appellant entered an Alford 1 plea to the ADW count in exchange for the government’s agreement to dismiss the remaining charges.
On September 9, 2005, Judgе Puig-Lugo sentenced appellant to consecutive twenty-four-month terms of imprisonment on the three counts of second-degree cruelty to children and a concurrent term of five years on the ADW count, suspended execution of all four sentences, and imposed concurrent three-year probationary periods on each count.
On appeal, appellant asserts that the trial court erred in two respects regarding the imposition of his sentencеs. First, he argues that imposing consecutive sentences for the three cruelty to children counts violated the Double Jeopardy Clause because the three counts merged into a single offense, having arisen from a single act that caused a grave risk of bodily injury to three children. Second, he contends that the trial court abused its discretion by purporting to comply with the court’s voluntary sentencing guidelines, yet erroneously interpreting the guidelines as not requiring concurrent sentenсes for the three cruelty to children counts.
I.
The evidence adduced at trial established, inter alia, that early in the evening on February 18, 2005, Liehelle Foster strapped her three young daughters — five-year-old Rayonna and two-year-old twins, Tanaya and Taniya — in their car seats and set out in her vehicle. While stopped at a red light on Eastern Avenue at the intersection with Division Avenue, appellant, a stranger to Ms. Foster, opened the front passengеr door of her vehicle and got in. At first appellant said nothing and Ms. Foster attempted to push him out of the car. As she pushed, he then said in a low voice, “can you help me?” She replied, “no, can you get out of my car?,” whereupon appellant reached towards his side and then lunged at her, swinging his hand in an “overhead motion,” and prompting Ms. Foster to open her door and fall out of the car into the street.
Hearing her daughters scream and realizing that they were still in the vehiclе, Ms. Foster grabbed hold of the driver’s side door and held on, but as the light changed and the car accelerated through the intersection, she was dragged a short distance, then fell to the roadway. After she briefly observed her car careen to the left of the center line, then “jerk” back to the right to avoid oncoming traffic as it drove away, Ms. Foster ran for help, eventually accepting a ride from an unknown man who drove off with her in the direction Ms. Foster’s car had gone. About a blоck-and-a-half later, traffic had come to a standstill, and Ms. Foster saw that her car had crashed into a parked car. She got out of the car she was in and ran towards her car, screaming for her children. Once at her car, she “grabbed all three” girls who were “just screaming” and “very terrified.” After she identified appellant on the scene, she and the children were taken to a hospital where it was determined that she and Rayona had sustained minor physical injuries. Photographs rеceived in evidence showed that the passenger side of Ms. Foster’s vehicle was damaged by the collision and that her car’s air bags had deployed. The parked car impacted by the collision had been “totaled.”
II.
A person commits the crime of cruelty to children in the second degree if that person intentionally, knowingly, or recklessly:
(1) Maltreats a child or engages in conduct which causes a grave risk of bodily injury to a child; ...
Emphasis added.
Cruelty to children — unlike assault — includes the infliction of mental or emotiоnal pain or suffering upon a child, as well as physically assaultive conduct.
Alfaro v. United States,
Appellant initially asserts that the trial court’s imposition of consecutive sentences on the three counts of Second-Degree Cruelty to Children of which he was convicted violated the Doublе Jeopardy Clause because the counts arose from a single act that “caused a grave risk of bodily injury” to Rayona, Tanaya, and Ta-niya Foster. He argues that the statute defines second-degree cruelty to children “by reference to the criminal act causing the harm, rather than by reference to the number of victims of the act,” and that consequently, purportedly relying on
Williams v. United States,
Because the “essence of the offense” of cruelty to children, appellant contends, is the “conduct itself,
not each child affected by the conduct”
(emphasis added), the conduct itself is the proper “unit of prosecution” under
Lennon v. United States,
Appellant’s argument largely relies on a line of case authority from this court and the federal courts stаnding for the principle that “a single act that puts multiple victims in fear of injury constitutes a single assault.”
See, e.g., Joiner v. United States,
The government argues, citing
Ladner,
that (1) the issue before us is one of statutory, not Constitutional interpretation, (2) the unit of prosecution intended by the legislature in enacting the second-degree cruelty to children statute was the child victim, not the proscribed conduct, and (3) consequently, a separate offense was committed by the defendant as to each child who was put at “grave risk of bodily inju
First, as
Ladner
made clear, the issue before us is not one of Constitutional interpretation, but rather statutory application.
Ladner, supra
at 173,
In Ladner, appellant violated a federal statute prohibiting the assault of federal officers when he fired a single shotgun blast into a car in which two federal officers were sеated. Both of the officers sustained injuries and consequently appellant was convicted on two counts of violating the federal statute. The Supreme Court overturned one of the convictions, holding that the single blast gave rise to only one assault. The Court relied on its interpretation of the purpose of the federal statute, 15 rather than a controlling legal principle limiting the number of charges that can arise where a single gunshot results in multiple injuries.
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Our decisions in Murray v. United States,358 A.2d 314 (D.C.1976), and Williams v. United States,569 A.2d 97 (D.C.1989), are applicаble to and persuasive in the decision of the instant case.
In these cases, a single act by a motorist resulted in multiple deaths, and so convictions for multiple counts of negligent homicide, Murray, and manslaughter, Williams, were sustained. The key factor in these cases was the court’s conclusion that the statute defining the crime charged was intended to protect individual victims, and that the imposition of multiple punishments for a single act was not disproportionate with the appellant’s criminal responsibility. See Murray, supra,358 A.2d at 320 (distinguishing the statute at issue from that construed in Ladner, supra); Williams, supra,569 A.2d at 104 . Where “multiple deaths are a foreseeable result of a reckless act, ... the fact that only one person, rather than several, may have died should be regarded as a fortuity that prevents what otherwise would be an expected — and justified — greater punishment.” Williams, supra,569 A.2d at 104 .
Emphasis added.
Here, as in Ruffin, we conclude that that the statute defining the crime with which appellant was charged was intended to protect individual victims, and that consequently, the gravamen of the offense is the proscribed effect on each victim, not the acts or omissions leading to it. Compare Williams v. United States, supra.
Indeed, as the government persuasively argues, to have it otherwise would compromise the plain language of the statute which
does not prohibit any particular defined act or conduct;
it prohibits only “engaging] in conduct” which has a
proscribed effect on a child, i.e.,
that which creates a “grave risk of bodily injury.”
3
This, we think, is a powerful indication of
Here, appellant was found guilty by a jury, under three separate counts of an indictment, of conduct that caused a grave risk of bodily injury not to one child, but to three different children — Tanaya and Ta-niya Foster, the twin two-year-old daughters of Michelle Foster, and the twins’ five-year-old sister, Rayonna. The evidence, considered in the light most favorable to the government, permitted a reasonable juror to conclude beyond a reasonable doubt that one child, Rayonna, sustained a physical injury as a result of appellant’s conduct, and her two-year-old sisters sustained emotional pain and suffering and a battery (ie., they were “terrified” and “screaming” when their mother retrieved them from her vehicle, and as a consequence of the collision of the vehicle with a parked car, the airbags in their vehicle deployed and the parked car impacted by their vehicle was “totaled”). This, we conclude, was sufficient to permit separate convictions of appellant, and the imposition of consecutive sentences by the trial court, for three counts of second-degree cruelty to children.
III.
On September 9, 2005, appellant appeared before Judge Puig-Lugo for sentencing. After having advised counsel and appellant that he had reviewed the presen-tence report and all of the written materials submitted by the parties, and after hearing from counsel and appellant, Judge Puig-Lugo imposed a “split sentence,” (1) directing that appellant serve twenty-four months on each secоnd-degree cruelty to children count of which he had been convicted, (2) ordering that the sentences run consecutively to one another, (3) suspending execution of the sentences as to all but time served, and (4) placing appellant on probation for three years.
Notwithstanding that appellant’s sentences for the three counts of second-degree cruelty to children for which he was convicted plainly were within the statutory maximum sentence set out in
(1) Promulgate, implement, and revise a system of voluntary sentencing guidelines for use in the Superior Court of the District of Columbia designed to achieve the goals of cеrtainty, consistency, and adequacy of punishment, with due regard for the:
(A) Seriousness of the offense;
(B) Dangerousness of the offender;
(C) Need to protect the safety of the community;
(D) Offender’s potential for rehabilitation; and
(E) Use of alternatives to prison, where appropriate;
Emphasis added.
(a) The voluntary sentencing guidelines promulgated by the Commission shall not be binding on judges.
(b) Notwithstanding the guidelines, the judge in an individual case may impose any sentence that does not exceed the maximum term prescribed by law and is not otherwise prohibited by the Constitution or laws of the United States or the District of Columbia.
(c) The sentencing guidelines shall not create any legally enforceable rights in any party nor shall they dimmish any rights that currently exist.
Emphasis added.
In addition to
Nevertheless, appellant asserts that “even though a
sentence
that does not comply with the guidelines remains lawful as long as it does not exceed the statutory maximum,” this court “may nonetheless review a trial court’s
sentencing process
for an abuse of discretiоn to determine whether the trial court relied on an erroneous interpretation of the guidelines in imposing a lawful sentence.” (Emphasis in original.) In support of this argument, appellant directs our attention to cases which have held that the sentencing process is subject to review where the sentencing judge is shown to have relied on improper or inaccurate information, or to have “totally failed to exercise his discretion in imposing sentence.”
See, e.g., Dorszynski v. United States,
The government’s argument to the contrary is straightforward. Put succinctly, the government asserts the
Unlike the cases cited by appellant where appellate courts have reviewed the sentencing process, Judge Puig-Lugo did not fail to follow a statutorily-prescribed procedure in imposing sentence on appellant, rely on improper or inaccurate information, sentence a defendant unrepresented by counsel, consider representations by the government that violated a plea agreement with appellant, or fail or decline to exercise his discretion. In short, he did not do something he was legally required not to do, or fail to do something he was legally required to do. Rather, Judge Puig-Lugo considered the guidelines in determining an appropriate sentence for appellant, and heard representations from defense and government counsel as to their differing views as to how application of the guidelines should affect appellant’s sentence. See footnote 4, supra. Thereupon, he concluded that the government’s argument that the guidelines permitted consecutive sentences was correct, and he imposed them. However, even had he concluded that the guidelines directed the imposition of concurrent sentences, he nevertheless could have chosen to impose consecutive sentences because (1) they were in compliance with the relevant statute, and (2) the guidelines were not binding and created no enforceable rights for appellant.
We decline to interpret Section 5.2.2(2) [of the guidelines] and therefore decline to consider whether transgender status signifies “reduced рhysical capacity,” as the trial judge reasoned. By design, the Voluntary Sentencing Guidelines are entirely voluntary, and judges are free to apply or ignore them as they see fit without interference by this Court. See D.C. SENTENCING GUIDELINES MANUAL at § 5.3 (“The guidelines are voluntary.... [A]ny lawful sentence is not appealable whether or not it complies with the guidelines.”); see alsoD.C.Code § 3-105(a) -(c) (2001) (“The voluntary sentencing guidelines ... shall not be binding on judges [and] shall not create any legally enforceable rights in any party”); Cook v. United States,932 A.2d 506 , 507 (D.C.2007) (“the Superior Court Voluntary Sentencing Guidelines ... being voluntary would not have compelled the trial court to impose a lesser sentence”) (emphasis in original). The Maryland Court of Special Appeals’ observation about that jurisdiction’s voluntary sentencing guidelines is applicable to the District’s Guidelines as well: “Whether ... a trial judge scrupulously follows, outrageously flouts or clumsily misapplies the sentencing guidelines is simply none of our appellate business, unless ... such flouting or misapplying should coincidentally trigger one or more of оur more limited and traditional reasons for reviewing a sentence.” Teasley v. State,54 Md.App. 454 ,458 A.2d 93 , 94 (1983), aff'd,298 Md. 364 ,470 A.2d 337 (1984).
White v. United States,
Our conclusion that appellant’s argument to the contrary is unavailing is consistent not only with
White, swpra,
but with the decisions of other State courts with voluntary sentencing guidelines comparable to those in the District of Columbia.
See, e.g., Teasley v. State, supra,
For the foregoing reasons, the judgment appealed from is hereby
Affirmed.
Notes
.
See North Carolina v. Alford,
. Appellant cites Williams in support of his claim that "because the statute defines the offense ‘by reference to the criminal act causing the harm, rather than by reference to the number of victims of that act,’ the unit of prosecution is the conduct itself, not each child affected by the conduсt.” However, appellant’s conclusory assertion with respect to the statute at issue here finds no support in Williams. Rather, the court there postulated that if, as appellant in Williams argued, "the common law defines manslaughter by reference to the criminal act causing the harm, rather than by reference to the number of victims of that act, then appellant's convictions may have to be vacated for insufficient proof of more than one offense. But, ... if manslaughter is defined hy reference to the number of victims, then there is no double jeoрardy problem with appellant’s punishment for multiple offenses because seven persons died as a result of appellant’s conduct.” Id. at 98. (Emphasis added.)
It is important to note that because the intent of Congress in passing the statute was unclear, the Court applied the rule of lenity, construing the statute as one intended to promote the orderly functioning of the federal government rather than to protect each officer as an individual.
. At least two of the cases primarily relied uрon by appellant as purportedly analogous to the instant case, where courts have found the unit of prosecution to be the conduct prohibited rather than the victim affected by the conduct, have focused on precisely specified conduct — sometimes with a wholly undefined victim.
See Lennon v. United States,
736
. At appellant’s sentencing, Judge Puig-Lugo announced that he had read the written submissions of counsel, including their arguments, and invited them to provide any needed changes to the presentеnce report, as well as anything they would like to add to their written pleadings. After appellant’s counsel indicated that there were certain errors regarding appellant’s alleged criminal history, he noted that ‘‘there appears to be a dispute with respect to whether the three second-degree cruelty to children charges must be run concurrently or can — whether the Court has discretion to run them consecutively.... [fit’s the defense position that the Court has to run thosе concurrently.” Judge Puig-Lugo noted it was the government’s position that the sentences should he run consecutively. The guidelines provisions in issue were nos. 6.2 and 6.3. They provide, respectively:
6.2 Concurrent Sentences. The following sentences must be imposed concurrently: For non-violent offenses: multiple offenses in a single event, ...
6.3 Judicial Discretion. The court has discretion to sentence everything else either consecutively or concurrently.
Appellant’s trial counsel argued before Judge Puig-Lugo that because appellant had been convicted of multiple non-violent crimes in a single event, guideline 6.2 required imposition of concurrent sentences. However, the government asserted that guideline 6.2 was not applicable because there had been multiple victims of appellant's crimes' — a factor not included in the language of 6.2 — and that consequently, under guideline 6.3, Judge Puig-Lugo was vested with discretion to impose either consecutive or conсurrent sentences. Judge Puig-Lugo agreed with the government and imposed consecutive sentences.
. Members of the District of Columbia Sentencing Commission, not surprisingly, have repeatedly and emphatically expressed views consistent with the language of